2022 IL App (1st) 200895 FIRST DISTRICT FIRST DIVISION January 31, 2022 No. 1-20-0895
SHIRLEY PRYOR, Individually and as Independent ) Appeal from the Administrator of the Estate of Clark Pryor, and KANELLE ) Circuit Court of PRYOR, ) Cook County ) Plaintiffs-Appellants, ) No. 17 L 011593 ) v. ) Honorable ) Christopher E. Lawler, THE CHICAGO TRANSIT AUTHORITY, ) Judge Presiding. ) Defendant-Appellee. )
JUSTICE COGHLAN delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶1 In this wrongful death and survival action against defendant the Chicago Transit Authority
(CTA), plaintiff Shirley Pryor, as independent administrator of the Estate of Clark Pryor (Clark)
(her son), and Kanelle Pryor (Clark’s son) appeal the section 2-619 dismissal of the second
amended complaint with prejudice (735 ILCS 5/2-619 (West 2018)). The Pryors argue that the rail
operator negligently and willfully and wantonly operated the train that fatally hit Clark by failing
to reduce the train’s speed as it entered the elevated platform, based on the foggy conditions and
Clark’s proximity to the platform’s edge. We affirm.
¶2 I. BACKGROUND
¶3 On May 1, 2017, at about 11:39 p.m. (46 minutes before the incident), Clark entered the
Roosevelt Orange line CTA station, purchased a train ticket, and eventually stood on the outdoor
elevated platform. It was foggy outside and the ground was wet from prior precipitation. At this
elevated train station, there are two tracks that run parallel, northbound and southbound, with a No. 1-20-0895
platform separating the two tracks.
¶4 Shortly after midnight on May 2, 2017, at about 12:25 a.m., a train traveling southbound
from the Loop and heading towards Midway approached the Roosevelt train station. As the rail
operator pulled into the station, Clark walked off the platform and fell onto the train tracks. The
train hit Clark, and he died from his injuries.
¶5 CTA surveillance video at the Roosevelt Orange line station recorded the activity relating
to the incident. For approximately 5 minutes and 22 seconds before the incident, Clark appears in
the video and can be seen roaming around the platform; his stance and walk unsteady, and at times
rocking back and forth. At one point, Clark appears to have urinated on the platform. At 12:25:54
a.m., the approaching southbound train’s headlights became visible, and Clark walked towards the
southbound train tracks from the center of the platform and in front of the elevator bank that
appears to block the oncoming train’s view of the platform. At 12:25:55 a.m., Clark stepped on the
blue tactile edge and continued walking towards the train tracks. At 12:25:56 a.m., Clark, while
looking down, walked off the platform, fell onto the train track, and was hit by the oncoming train.
¶6 On November 14, 2017, the Pryors filed a wrongful death and survival action based on
negligence and willful and wanton conduct against the CTA. The complaint alleged that Clark
“was an impaired rider” and he “stumbled repeatedly while waiting to board an Orange Line ‘L’
train.” The complaint asserted that the CTA “knew or should have known that [Clark] was at a
heightened risk of sustaining serious injury and/or death while waiting to board an Orange Line
‘L’ train” but failed “to take any action to assist [Clark] prior to his death.” During the course of
litigation, investigations into the incident were conducted, and more than 23 individuals were
deposed. Relevant discovery is summarized below.
¶7 Maria Lagunas was the rail operator of the train that fatally hit Clark. At her deposition,
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Lagunas stated that the allowable speed to enter a platform is 35 miles per hour, but a rail operator
should “start lowering the speed” sooner when a platform is harder to see. When approaching a
train station, Lagunas looks for people “[n]ot getting too close to the blue stripe *** on the
platforms” because they are at risk of falling onto the tracks. As part of her training, she was
instructed to look for people who are unstable or intoxicated when the “train is properly berthed
on the platform” but not before. When she enters a train station, Lagunas was trained under the
CTA’s internal standard operating procedures “to look, observe, then look straight, berth the train,
again look, properly brake, *** look outside and then you see the people.”
¶8 Regarding the Roosevelt platform, Lagunas stated that the platform is on the rail operator’s
left side going towards Midway, making it “harder to see,” and it is more difficult to see when it
is foggy and nighttime. If it is foggy outside but the control center did not instruct her to reduce
her speed to 6 miles per hour to enter the station, she would “go actually like 15 and then slow it
down to properly berth the train into [the] station.” If she saw an individual standing too close to
the blue tactile line, she would use her emergency brake and sound the horn to “alert them that the
train is coming.” If the train is moving at 6 miles per hour and the emergency brake is pulled, the
train can be stopped almost instantaneously. Applying the emergency brake to a train traveling at
15 miles per hour would stop the train within a second or two.
¶9 On the day of the incident, when the “nose” of her train reached the beginning of the
platform, Lagunas was going less than 35 miles per hour. She had started braking but could not
recall how fast the train was moving. She did not sound the horn as she entered the station. Lagunas
had less visibility of the platform because it was nighttime, but the lighting “was normal.”
¶ 10 While the train was still entering the station, somebody stepped off the platform—“it
happened so fast,” and she “did not see him at all.” Lagunas first saw him “as soon as that person
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jumped” directly in front of her train because “it was like that [ ] instantly.” “When he jumped
[she] stopped the train right away.” Lagunas “couldn’t stop sooner because it happened so fast.”
She did not see Clark “because he was behind the elevator” but “saw other people up ahead.”
Lagunas applied the emergency brake when she “noticed he was underneath.”
¶ 11 Other rail operators were also deposed and explained the standard operating procedures
implemented by the CTA. Rail operators enter a platform at 35 miles per hour “and then as you
get closer to your mark, we’re down to about 5, 10.” Generally, arriving at the station and boarding
passengers is “really a quick process” Rail operators are not required to automatically reduce the
train’s speed to between 6 and 15 miles per hour at night or bad weather. Rather, rail operators use
“operational sight” as a guide to determine the train’s speed, meaning they should “operate [at]
half the range of vision.” For example, if a rail operator can see 500 feet ahead, he should be able
to stop the train within half that—about 250 feet. A rail operator does not slow down a train every
time an individual is on the blue tactile edge because “operating time would be a mess, we would
be behind schedule.”
¶ 12 Rovaughan Graham has been the general manager of Transit Safety at the CTA since 2016.
At his deposition, he stated that rail operators are required to follow the CTA standard operating
procedures. He explained that if rail operators see someone too close to the edge of a platform,
“they would give short bursts of the horn.” In emergency situations, rail operators have the
opportunity “to slam on the brakes” or reduce speed. Weather conditions, such as fog or rain, could
affect the rail operator’s visibility, and the train should be stopped if “visibility is impaired.” Rail
operators should also keep a proper lookout while operating the train and doing so does not impose
an additional burden.
¶ 13 Regarding the surveillance video of this incident, Graham “would say [Clark] looks
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unstable on the platform” and was not on the platform’s blue tactile edge. Graham explained that
“the challenge for the operator would be they’re moving into the station, so they’re just seeing him
on the platform at this point.” Graham stated that the transit safety department did not identify
anything that the operator could have done to prevent the incident.
¶ 14 The Safety, Compliance and Risk Management department of the CTA prepared a final
incident report, which was submitted to the Illinois Department of Transportation. The incident
narrative stated the following:
“Transit Safety conducted a fact finding interview with Operator of run #726, Maria
Lagunas. Lagunas stated in substance but not verbatim, while entering Roosevelt Station
southbound, she observed a male on the tactile edge of the platform who appeared to lose
his balance and fall to track level. Lagunas stated she put her train in emergency braking
and attempted to stop her train but was unable to stop before making contact with the male.
Lagunas next notified the Control Center of the incident. Lagunas stated she was shaken
up as a result of the incident and requested medical assistance.
***
Transit Safety reviewed the platform video from the Roosevelt Station. The video showed
[Clark], walking across the platform from east to west. Next, [Clark] is observed stepping
off the tactile edge of the southbound side of the platform and onto the right of way as run
#726 entered the station.”
“Transit Safety [did] not have any recommendations.” 1 The report concluded that the probable
cause of the incident was “imprudent customer actions.” Clark “walked off of the platform and
1 Ronnie Phipps, a safety officer for the CTA who investigated the incident and originated the report, explained that the purpose of this section was to determine whether there was anything that could have been done differently to prevent similar events from happening in the future.
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trespassed onto the right of way and into the path of the oncoming train.”
¶ 15 On July 10, 2019 (1½ years after commencing this action), the Pryors filed an amended
complaint, asserting that “a common carrier owes its passengers the highest duty of care,” which
the CTA breached through its rail operator’s negligent operation of the train and contrary to the
CTA’s training, rules, and procedures. The CTA filed a combined section 2-615 and 2-619 motion
to dismiss (735 ILCS 5/2-615, 2-619 (West 2018)) and provided the video surveillance of the
incident. The CTA argued that the Pryors failed “to identify any recognized legal duty which CTA
owed the Decedent and/or breached.” The CTA relied on this court’s decision in Anderson v.
Chicago Transit Authority, 2019 IL App (1st) 181564, ¶ 35, finding “that mere presence on a CTA
platform *** without more, does not garner the injured person the status of a ‘passenger’ to whom
the CTA owes the highest duty of care.” In the alternative, the CTA argued that Clark “was a
trespasser” and that the danger posed by the moving train was “open and obvious.”
¶ 16 The Pryors incorporated in their response to the motion to dismiss a “Preliminary Safety
Report,” prepared by their engineering expert, Carl Berkowitz. In the section of the report labeled
“B. Failures,” Berkowitz stated the following:
“The key failure is the train operator not following the required safety procedures upon
entering Roosevelt Station. Standard operating procedures and established standards of care
required the train operator to:
• Slow the train down to 6 mph due to foggy conditions.
• Upon seeing [Clark] standing precariously at the edge of the platform (as indicated in
the CTA incident report), to immediately stop the train and blast the horn.
• If the train operator did not see [Clark] (as stated in Ms. Lagunas’ deposition in
contradiction to the incident report), then perform a proper look out of the train platform
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upon entering the station.”
Berkowitz concluded that “[b]ased on the information presented in this Safety Report and with a
reasonable degree of engineering certainty, it is my professional opinion that Chicago Transit
Authority did not meet recognized national standards of care for the operation of a train and is thus
responsible for this accident.”
¶ 17 The trial court construed the CTA’s “entire motion as a section 2-619 motion to dismiss”
because the motion was not labeled separately and the “open and obvious” analysis “require[d]
facts and materials appearing outside the complaint, and thus exceeds the scope of section 2-615.”
In dismissing the complaint, the trial court agreed with the CTA that Anderson was dispositive
because “these facts do not establish that Decedent was a CTA passenger when he fell onto the
tracks” to whom the CTA owed any “heightened duty of care.” The trial court also held that the
Pryors failed to allege “an ordinary duty owed” because they could not establish that the CTA
knew Clark was “impaired.” The trial court clarified its ruling, explaining that plaintiff “may
replead the facts alleged in the first amended complaint in the second amended complaint, however
the duty paragraphs should be amended to address ordinary care and willful and wanton, not the
heightened duty.”
¶ 18 The Pryors filed “a proposed amended complaint” at “the Court’s request,” alleging that
the rail operator breached its duty to operate the train safely and, in violation of CTA internal rules
and industry safety standards, by failing “(a) to reduce the speed of her train for weather and
platform conditions and/or (b) to reduce the speed of the train once observing a person standing
close to the edge of the platform.” The complaint also alleged that the CTA acted willfully and
wantonly by “failing to take any measure to stop, reduce speed, or blow the horn, despite having
actual knowledge that the train was reasonably likely to come in contact with Clark.” The trial
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judge scheduled a case management conference “to discuss [plaintiff’s] 2nd amended complaint
(filed) prior to [defendant] filing a responsive pleading.” On the same day as the scheduled
conference, the trial court again dismissed the case, citing to Anderson and finding that “the facts
here are insufficient to allege either heightened or ordinary duties of care.”
¶ 19 II. ANALYSIS
¶ 20 The Pryors appeal the dismissal of the action under section 2-619. A section 2-619 motion
to dismiss disposes of “issues of law and easily proved issues of fact at the outset of litigation.”
Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). Under a section 2-619 motion to
dismiss, a court “ ‘must interpret all pleadings and supporting documents in the light most
favorable to the nonmoving party.’ ” Valerio v. Moore Landscapes, LLC, 2021 IL 126139, ¶ 20
(quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). In doing so, “the court
accepts as true all well-pleaded facts in the complaint and all inferences that may reasonably be
drawn in plaintiffs’ favor.” Id. We review a dismissal under section 2-619 de novo. Id.
¶ 21 The Pryors argue that “Anderson does not compel dismissal of the *** action, as Anderson
had nothing to do with rail operations or a rail operator’s duty to drive safely,” unlike their claims
that were “based solely on the rail operator’s negligent and/or willful and wanton operation of the
train.” The Pryors assert that this case is analogous to Skelton v. Chicago Transit Authority, 214
Ill. App. 3d 554 (1991), not Anderson.
¶ 22 Although the Pryors argue that Anderson is not dispositive because the second amended
complaint (per the trial court’s instruction) did not include allegations that Clark was a “passenger”
to whom the highest duty of care was owed, the Pryors included that allegation in the first amended
complaint and “intend to preserve said argument.” Moreover, given the CTA’s classification as a
“common carrier,” determining whether Clark was a “passenger” is a necessary component of a
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negligence analysis.
¶ 23 In Anderson, the decedent paid his fare, entered the station’s platform, and “stood there
about 30 minutes with some 11 trains passing on both sides of the tracks.” 2019 IL App (1st)
181564, ¶ 4. The “decedent never boarded any CTA train on the morning of his death but rather
appeared to be a CTA customer who was weighing whether to enter a train.” Id. ¶ 5. Within the
last few minutes before the incident, the “decedent tripped or stepped on [a] bottle or can, knocking
it into the trackbed before he toppled over the track and landed face down on the third rail, where
he was electrocuted.” Id. ¶ 7. “No train was approaching when he fell on the track.” Id. The plaintiff
filed wrongful death and common-carrier negligence claims against the CTA, alleging
“that decedent was a CTA passenger to whom the CTA owed the ‘highest duty of care’ and
that the CTA negligently failed to fulfill its duty insofar as the employees *** failed to
approach decedent to assess his condition even though he was displaying ‘clear signs and
symptoms’ of a ‘medical emergency.’ ” Id. ¶ 9.
The plaintiff alleged that the decedent “was having a ‘medical emergency’ as a result of his diabetic
condition,” which caused his visible “unusual behavior” on the platform. Id. ¶ 8. The Anderson
court agreed with the CTA, finding that the decedent was not a “passenger,” entitled to a
“heightened duty of care” owed by a common carrier, because the decedent was not “in the act of
boarding” upon, or “in the act of alighting from the carrier’s vehicle.” Id. ¶ 27.
¶ 24 In reaching its decision, the Anderson court found Skelton “of questionable value.” Id. ¶ 32.
In Skelton, the plaintiff stood at the edge of the platform and “started waving to get the attention
of the driver of the train to make sure the train would stop.” Skelton, 214 Ill. App. 3d at 563. As
the train approached the station, the plaintiff lost his balance, fell onto the track, and was struck by
the oncoming train. Id. at 561, 563-64. The court found that there was “no dispute that plaintiff
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was at the place provided by the CTA for waiting passengers and had placed himself under the care
of the CTA” while he waited for the train. Id. at 573. The Skelton court held “that the evidence
presented at trial established that plaintiff was a passenger” and the CTA “owed the plaintiff a duty
of ‘the highest degree of care.’ ” Id.
¶ 25 Anderson found “Skelton’s holding—that the plaintiff’s presence on the platform, together
with intent to board, was enough to make him a passenger—misplaced.” Anderson, 2019 IL App
(1st) 181564, ¶ 32. Anderson, instead, held
“that mere presence on a CTA platform, followed by an accidental death on the train tracks
possibly from a medically-induced condition, without more, does not garner the injured
person the status of a ‘passenger’ to whom the CTA owes the highest duty of care,
notwithstanding that the injured person paid his fare and at one point had intentions of
boarding a train.” Id. ¶ 35.
¶ 26 Here, we find Anderson, and not Skelton, dispositive. There is no dispute that Clark
lingered on the platform for about 46 minutes without boarding any of the trains that entered and
departed the station. Those facts are consistent with Anderson. Because Clark was not in the
process of boarding a train, nor did his actions demonstrate any such intent, Skelton is
distinguishable. We agree with Anderson that an individual must be “in the act of boarding, be
upon, or be in the act of alighting from the carrier’s vehicle” to be considered a “passenger” to
whom the highest degree of care is owed. Id. ¶ 27. The facts, as alleged, do not demonstrate such
actions. Therefore, under Anderson, we do not find that Clark was a passenger to whom the CTA
owed the highest duty of care.
¶ 27 We next consider whether the complaint sufficiently pled a cause of action for “ordinary
negligence.” The Pryors argue that the CTA had a duty “to use ordinary care for the safety of Clark”
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and breached that duty because the train operator “chose to enter the station at the fastest rate of
speed,” despite the “poor conditions, with limited visibility” and “decided to not slow or stop her
train, even after seeing Clark from a distance, close to the edge of the platform.”
¶ 28 “It is well settled that every person owes a duty of ordinary care to all others to guard
against injuries which naturally flow as a reasonably probable and foreseeable consequence of an
act ***.” Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373 (1990). To state an action for negligence,
the plaintiff must plead that the defendant owed the plaintiff a duty, the defendant breached that
duty, and an injury was proximately caused by the breach. Steed v. Rezin Orthopedics & Sports
Medicine, S.C., 2021 IL 125150, ¶ 36. An analysis of the duty element involves consideration of
the following 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.” Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951,
¶ 22. “Whether a duty exists is a question of law for the court to decide.” Id. ¶ 21. The elements of
breach and proximate cause are factual matters for the jury to decide. Flores v. Westmont
Engineering Co., 2021 IL App (1st) 190379, ¶ 25. If the defendant owed no duty to the plaintiff,
the plaintiff’s claims fail as a matter of law. Id.
¶ 29 Turning to the first two factors of the duty analysis, we find that the reasonable
foreseeability and likelihood of the injury in this case weigh in favor of the CTA. “When a
condition is deemed open and obvious, the likelihood of injury is generally considered slight as it
is assumed that people encountering potentially dangerous conditions that are open and obvious
will appreciate and avoid the risks.” Park v. Northeast Illinois Regional Commuter R.R. Corp.,
2011 IL App (1st) 101283, ¶ 12.
¶ 30 In Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶¶ 4, 8, the 12-year-old
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plaintiff was seriously injured when he fell after attempting to jump onto a moving train. In his
personal injury action, the plaintiff alleged, in part, that the defendants failed to “otherwise warn
of the danger of trains.” Id. ¶¶ 1, 15. Finding in favor of the defendants, our supreme court held
that “we now explicitly recognize as a matter of law that a moving train is an obvious danger that
any child allowed at large should realize the risk of coming within the area made dangerous by it.”
Id. ¶ 35. This court has similarly held that a moving train poses an “open and obvious” danger. See
Park, 2011 IL App (1st) 101283, ¶ 18 (affirming the trial court’s finding that “as a matter of law
*** the train and the danger it presented were open and obvious”); Zokhrabov v. Park, 2011 IL
App (1st) 102672, ¶ 4 (recognizing that this “court recently held that the personal danger posed by
stepping in front of a moving train is an open and obvious danger”).
¶ 31 Here, we find that the CTA train entering the Roosevelt station posed an “open and
obvious” danger. A reasonable person in Clark’s position “exercising ordinary perception,
intelligence and judgment would recognize both the condition and the risk involved” in walking
off the train platform into the path of an oncoming train. Park, 2011 IL App (1st) 101283, ¶ 14.
Given the “open and obvious” danger posed by the moving train, Clark’s actions in walking past
the blue tactile edge off the platform directly onto the path of an almost simultaneously
approaching train were not reasonably foreseeable to the CTA. See Bucheleres v. Chicago Park
District, 171 Ill. 2d 435, 448 (1996) (“The open and obvious nature of the condition itself gives
caution and therefore the risk of harm is considered slight; people are expected to appreciate and
avoid obvious risks.”). And as the depositions established, a rail operator is not required to reduce
a train’s speed based on foggy weather conditions where, as here, the visibility of the platform was
not reduced but “normal.”
¶ 32 A duty of care may nonetheless be imposed under the “distraction exception” or the
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“deliberate encounter exception” to the open and obvious rule. Park, 2011 IL App (1st) 101283,
¶ 22. The distraction exception applies “if there is a reason to expect that the plaintiff’s attention
might be distracted so that he would not discover the obvious condition.” Id. ¶ 24. The “deliberate
encounter exception” applies “when a defendant has reason to expect that a plaintiff will proceed
to encounter the known or obvious condition, despite the danger, because to a reasonable person
in his position the advantages of doing so would outweigh the apparent risk.” Id. ¶ 26.
¶ 33 In this case, the pleadings and/or video surveillance do not support the application of either
exception.
¶ 34 The Pryors, however, argue that the “open and obvious” doctrine is irrelevant because the
“train did not cause Clark’s death” and “[n]either did the tracks”; rather, he “died because [the rail
operator] failed to take reasonable measures to prevent fatal contact with a person in known and
appreciated peril.” We consider this a distinction without a difference.
¶ 35 In McDonald v. Northeast Illinois Regional Commuter R.R. Corp., 2013 IL App (1st)
102766-B, ¶ 3, the decedent was struck by an express train traveling through a station towards
Chicago, as he crossed the train tracks at the pedestrian crosswalk. The pedestrian signals at the
train station had not yet been activated. Id. The plaintiff alleged that the defendant breached the
heightened duty of care owed by common carriers by operating “a train without keeping a
sufficient lookout,” “failing to adequately warn the decedent of the approach of the train,”
“operating its train at an excessive rate of speed given the fact that the pedestrian signals had not
been activated,” and “failing to adequately slow the train and avoid hitting the decedent.” Id. ¶ 4.
This court found no duty to warn because “the danger posed by the oncoming train in this case
was open and obvious and that the decedent should have realized the risk of trying to hurry across
the tracks before it arrived at the station.” Id. ¶ 25.
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¶ 36 Here, the Pryors, like the plaintiff in McDonald, alleged negligent conduct based, in part,
on the “excessive” speed of the train and the rail operator’s failure to “adequately slow the train.”
Even though the plaintiff in McDonald alleged a breach of a duty to warn and the Pryors alleged
a breach of a duty of care, the same outcome is required regardless of the duty alleged based on
the “open and obvious” danger posed by a moving train.
¶ 37 The Pryors also argue that we should look to Skelton, which rejected an application of the
“open and obvious” danger rule where the plaintiff’s theory of liability was not based on premises
liability but “negligence in the operation of the train.” Skelton, 214 Ill. App. 3d at 573. However,
Skelton was decided before our supreme court in Choate expressly held that a moving train poses
an “open and obvious” danger. Based on Choate, we find that the “open and obvious” danger posed
by the moving train bars a finding of a duty as a matter of law. Greenhill v. REIT Management &
Research, LLC, 2019 IL App (1st) 181164, ¶ 65. For this same reason, the CTA’s internal rules
addressing a rail operator’s responsibilities cannot impose a legal duty given Clark’s disregard for
the “open and obvious” danger posed by the moving train.
¶ 38 The last two factors of the duty analysis‒–the magnitude of the burden of guarding against
the injury and the consequences of placing that burden on the CTA‒–also weigh in favor of the
CTA. In weighing these factors, “[w]e may take judicial notice of the magnitude of the CTA’s
operations.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 234 (2010). In its motion to
dismiss, the CTA stated that in 2015, CTA trains ran on 224.1 miles of track, made about 2145
trips each day, serviced 145 stations, and had an annual ridership of 241.7 million. The Pryors
argue that the CTA was required to “take some measures to not kill Clark,” ignoring that Clark
voluntarily elected to walk off the platform into the path of an oncoming train. The CTA operates
a rapid transit and cannot be expected to guard against the sudden and unreasonable actions of
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nonpassengers. See id. (a court may consider the whether the imposition of a duty would be
“overwhelmingly detrimental to the efficient performance of the transit system” (internal quotation
marks omitted)).
¶ 39 In sum, the Pryors failed to sufficiently plead that the CTA owed Clark a duty of care
sufficient to withstand a motion to dismiss. 2 See id. at 233 (“[t]he burden to prove all the elements
of a negligence claim remains on the plaintiff throughout the proceedings”).
¶ 40 The Pryors also allege that the willful and wanton conduct counts survive dismissal because
“there is ample evidence for a jury to find [the rail operator] acted with a willful and wanton
disregard for Clark’s safety in her operation of the train.”
¶ 41 “There is no separate and independent tort of willful and wanton conduct”; rather, it “is
regarded as an aggravated form of negligence.” Id. at 235; see Doe v. Coe, 2019 IL 123521, ¶ 78
(duty, breach of the duty, and the breach being the proximate cause of the plaintiff’s injury must
be alleged and proved for a willful and wanton conduct cause of action). To state a cause of action
for willful and wanton conduct, “a plaintiff must allege either a deliberate intention to harm or an
utter indifference to or conscious disregard for the welfare of the plaintiff.” Adkins v. Sarah Bush
Lincoln Health Center, 129 Ill. 2d 497, 518 (1989). Although the issue of whether a defendant’s
actions amounted to willful and wanton conduct is generally a question of fact for the jury to
decide, a court may properly decide the issue as a matter of law “where the record shows absolutely
no evidence that the defendant displayed either an utter indifference to or a conscious disregard
for the plaintiff’s safety.” Mitchell v. Special Education Joint Agreement School District No. 208,
386 Ill. App. 3d 106, 111 (2008).
2 The CTA also argues that it owed no duty to Clark because he trespassed onto the train tracks. Because we find in favor of the CTA, we need not address this claim.
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¶ 42 The Pryors’ willful and wanton conduct claim rests on allegations that the rail operator
“showed an utter indifference to and/or conscious disregard for Clark’s safety” by, mainly, “failing
to take measures to avoid colliding with Clark, including reducing speed, stopping and/or blowing
the horn.” Clark emerged from behind the elevator bank and in the “zone of danger” seconds before
the train reached the platform. Clark did not stand on the blue tactile edge but walked in a fluid
and continuous motion from the center of the platform right onto the train tracks into the path of
the oncoming train. An internal investigation found the probable cause of the incident to be
“imprudent customer actions,” not employee negligence. “Willful and wanton misconduct should
shock the conscience ***.” Oravek v. Community School District 146, 264 Ill. App. 3d 895, 900
(1994). The CTA’s conduct in this case did not shock the conscience. We find that the willful and
wanton conduct counts were properly dismissed.
¶ 43 III. CONCLUSION
¶ 44 The trial court did not err in dismissing with prejudice the Pryors’ counts for negligence
and willful and wanton conduct.
¶ 45 Affirmed.
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No. 1-20-0895
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-L- 011593; the Hon. Christopher E. Lawler, Judge, presiding.
Attorneys Bryant M. Greening, of LegalRideshare, LLC, of Chicago, for for appellants. Appellant:
Attorneys Karen G. Seimetz, Stephen L. Wood, and Irina Y. Dmitrieva, of for Chicago Transit Authority, for appellee. Appellee:
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