Sandoval v. Northeast Illinois Regional Commuter Railroad

21 F. App'x 492
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 23, 2001
DocketNo. 01-1267
StatusPublished

This text of 21 F. App'x 492 (Sandoval v. Northeast Illinois Regional Commuter Railroad) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sandoval v. Northeast Illinois Regional Commuter Railroad, 21 F. App'x 492 (7th Cir. 2001).

Opinion

ORDER

On November 2, 1996, while walking across a railroad trestle owned by Burlington Northern, Jose Sandoval was struck by an Amtrak train and lost his leg. His mother, Theresa Sandoval, sued Burlington Northern and Amtrak on his behalf. The district court concluded that because Jose was a trespasser he could not succeed absent willful and wanton conduct by the defendants. Because Sandoval failed to present sufficient evidence of such conduct, the district court granted the defendants summary judgment. Sandoval appeals. We affirm.

I.

At about 6:00 on the evening of November 2,1996,15-year-old Jose Sandoval and four of his friends walked down an alley in their Chicago-area neighborhood and onto the railroad tracks located at 24th and Karlov. They turned right and began walking on the tracks until they reached a bridge located near the 2300 block of South Lawndale. The bridge was at least four blocks east and one block north of where they first entered the railroad right-of-way to walk along the tracks. As they began crossing the bridge, the boys saw a freight train approaching on one of the four sets of tracks which spanned the bridge. They immediately ran to a different set of tracks. Unfortunately, the slow-moving freight train blocked their view of a fast-moving Amtrak passenger train approaching on another set of the tracks. Two of the boys got out of the train’s path, the third was brushed aside by the train, but Jose was struck and the train amputated his right leg.

Jose’s mother, Theresa Sandoval, filed suit on his behalf against Burlington Northern, which owned the trestle and right-of-way, and against Amtrak, alleging negligence. Following discovery, the defendants moved for summary judgment, arguing that because Jose was a trespasser he could not recover for ordinary negligence, and that Jose failed to present facts sufficient to support a finding that they had acted willfully and wantonly. The district court agreed and granted the defen[494]*494dants summary judgment. Sandoval appeals.

II.

Illinois law applies to this diversity tort action. Under Illinois law, to state a cause of action for negligence, a plaintiff must establish “the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Ward v. KMart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (Ill.1990). The existence of a duty is a question of law to be decided by the court, and as to the duty owed by a landowner or occupier of land, the duty is determined by the status of the person on the property, i.e., a trespasser, licensee, or invitee. Rodriguez v. Norfolk & Western Ry. Co., 228 Ill.App.3d 1024, 170 Ill.Dec. 708, 593 N.E.2d 597, 607 (Ill.App.Ct.1992). Jose was clearly a trespasser on the train tracks, and he does not contend otherwise. Therefore, the general rule is that the defendants only owed Jose the duty of refraining from wantonly or willfully injuring him. Id., 170 Ill.Dec. 708, 593 N.E.2d at 607.

While Jose had argued to the district court that the defendants’ conduct constituted wanton and willful ■ behavior, he abandons this theory on appeal. Instead, Jose contends — as he did below — that he falls under the “permissive use” exception to the general rule that a railroad company owes no duty to a trespasser, except to refrain from wantonly or willfully injuring him.

“Under the permissive use exception, a landowner may owe a duty of care to trespassers, other than to refrain from willful and wanton conduct, when the landowner permits regular use of his land for travel.” Id., 170 Ill.Dec. 708, 593 N.E.2d at 608. This “exception requires that a landowner exercise ‘ordinary care’ towards trespassers if (1) the trespasser is a frequent trespasser (2) in a limited area (3) where the landowner knows or should know of the trespasser’s constant intrusion.” Reid v. Norfolk & Western Ry. Co., 157 F.3d 1106, 1111 (7th Cir.1998).

In granting the defendants summary judgment, the district court rejected Jose’s reliance on the “permissive use” exception, concluding that because Jose admitted that he had never gone on the tracks before, he was not a “frequent trespasser,” and that in any event, Jose’s trespass over a five-block area was not a “limited area” as required under Illinois law. We review this determination de novo, affirming only if, viewing the facts in the light most favorable to Jose, there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law. Reid, 157 F.3d at 1110.

We agree with the district court and conclude that the facts presented, viewed in the light most favorable to Jose, preclude his reliance on the permissive use exception. First, as the district court noted, Jose admitted that he had never before trespassed on the railroad’s tracks. Therefore, he himself is not a “frequent trespasser” as required by Illinois law. See Reid, 157 F.3d at 1111 (permissive use exception requires that the plaintiff, personally, be a frequent trespasser).

Jose argues in response that a person may be a “permissive user” even if he, personally, has not previously trespassed on the property, so long as he is a member of a class of users who have routinely used the property. However, that does not appear to be Illinois law. In Rodriguez, the plaintiff attempted to rely on the permissive use exception in his suit against Norfolk Railway for injuries he sustained while trespassing on the defendants’ tracks, even though he had never trespassed on the tracks before. The Illinois appellate court rejected the plaintiffs theory, explaining that “[pjrevious use of the [495]*495path by other members of the public is immaterial to plaintiffs ease because it cannot be relied on to establish that he was on the premises as a result of an implied invitation because the owner habitually permitted such entry.” Rodriguez, 170 Ill.Dec. 708, 593 N.E.2d at 610 (internal citation omitted). This court has interpreted Rodriguez as requiring the plaintiff to establish that “he frequently trespassed on the track” to qualify under Illinois law as a “permissive user.” Reid, 157 F.3d at 1111. Absent further guidance from Illinois courts, we decline to revisit our holding in Reid.

Even were we to accept Jose’s position, he would still not qualify under the “permissive use” exception for two reasons. First, the evidence presented by Jose established that others trespassed on the tracks at 24th and Karlov. The evidence, read in the light most favorable to Jose, also indicated that children sometimes trespassed on the tracks by entering a hole in the fence at 23rd and Lawndale. However, neither location was the site of Jose’s accident. Rather, Jose entered the tracks at 24th and Karlov and walked at least five blocks down the tracks, past the hole at 23rd and Lawndale and onto the railroad trestle. Jose failed to present any evidence that others regularly trespassed on the railroad trestle. Therefore, even if Jose himself did not need to qualify as a frequent trespasser, because he failed to present evidence that others frequently trespassed at the location where he was struck, he still does not qualify under the permissive use exception.

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Related

Rodriguez v. Norfolk and Western Ry. Co.
593 N.E.2d 597 (Appellate Court of Illinois, 1992)
Ward v. K Mart Corp.
554 N.E.2d 223 (Illinois Supreme Court, 1990)
Benamon v. Soo Line Railroad
689 N.E.2d 366 (Appellate Court of Illinois, 1997)

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Bluebook (online)
21 F. App'x 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandoval-v-northeast-illinois-regional-commuter-railroad-ca7-2001.