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=========================================== IN THE SUPREME COURT OF ILLINOIS =========================================== JAE BOON LEE, Administratrix of the Estate of SANG YEUL LEE, Deceased, Plaintiff-Appellant, vs. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee. =========================================== Appeal from the Appellate Court of Illinois, First District, No. 88-88. There Heard On Appeal From The Circuit Court Of Cook County, Illinois, County Department, Law Division. The Honorable James E. Sullivan, Judge Presiding.
---------- BRIEF OF AMICUS CURIAE THE ILLINOIS TRIAL LAWYERS' ASSOCIATION ----------- STATEMENT OF INTEREST The Illinois Trial Lawyers'
Association is an organization dedicated, inter alia, to serving
and protecting the interests of victims of tortious acts. The opinion of
the Illinois Appellate Court, First District, is a substantial curtailment
of the rights of one class of tort victims -- i.e., victims of the CTA's
enormously dangerous operation of an unguarded and unprotected third rail
system to power its trains at ground level intersections, within
foreseeable access by pedestrians passing on the public sidewalk 6 1/2
feet away. In addition, this Court has granted
Leave to Appeal in this case at least in part to consider whether the
common law distinctions on a landowner's duties to trespassers ought to be
abolished. The Illinois Trial Lawyers' Association offers its argument in
support of such abolition. QUESTIONS PRESENTED
1. Whether this Court should join
the recent trend by leading jurisdictions to abolish the artificial common
law distinction granting landowners virtual immunity for injuries to
trespassers on their land, and to substitute the traditional standard,
applied in virtually every other situation, of ordinary, reasonable care
under the circumstances. 2. Whether the Appellate Court erred
in ruling that the defendant CTA's use of the highly dangerous third rail
system to power its trains was merely a passive condition on the land, and
not a dangerous activity. 3. Whether the artificial
distinction between artificial conditions on the land and the landowner's
activities should be abolished. POINTS AND AUTHORITIES [omitted] STATEMENT OF FACTS [In its brief, ITLA adopted the Statement of facts from Plaintiff-Appellant's brief, supplemented by references to the record within the Argument itself. Because the Statement of Facts is very long, the following summary is taken from the opinion of the Illinois Appellate Court, Lee v. Chicago Transit Authority, 205 Ill. App. 3d 163, 562 N.E.2d 556 (1st Dist. 1990)(opinion by Justice McNamara): Plaintiff, Jae Boon Lee,
administratif of the estate of Sang Yeul Lee, brought a wrongful death
action to recover damages for the death of her husband which occurred
while he was on land owned by defendant, Chicago Transit Authority.
Plaintiff's complaint alleged that the CTA's conduct in maintaining its
third rail was either negligent or wilful and wanton, and caused
decedent's death. The jury returned a verdict for plaintiff on the
negligence count in the amount of $3,000,000, but reduced its award by 50
percent based on the decedent's own negligence. In response to a special
interrogatory, the jury found that the CTA's conduct was not wilful and
wanton. The CTA appeals from that judgment, contending that the trial
court erred in denying it motions for directed verdict and for judgment
notwithstanding the verdict . . . . On October 21, 1977, the morning
preceding the accident, the decedent informed plaintiff that he planned to
attend a party in the evening. Decedent apparently left the party after
dark. He proceeded up Kedzie Avenue, a north/south street which
intersected with the northwest-bound Ravenswood rapid transit line. At
this point, he apparently proceeded into the CTA's right-of-way in order
to urinate. In the process of doing so, he came into contact with the
third rail, and suffered fatal injuries. The decedent's body was found on the
elevated ("L") tracks located on the CTA's Ravenswood line at or near 4700
North Kedzie Avenue. John Costantini, a Chicago Fire Department paramedic
field officer, testified that the decedent lay perpendicular to the
northwest-bound CTA tracks, his head pointing north. The decedent's feet
were near the third rail, pointing in its direction. (The third rail
carries 600 volts of electricity and provides power to the train cars as
they traverse grade crossings). The decedent's pants zipper was open, and
his penis was exposed. The pathology report listed the immediate cause of
death as electrocution. At the time of his death, the decedent had a 0.341
percent blood alcohol concentration which placed him in the stupor
classification of intoxication. Thomas Wolgemuth, the CTA's Director
of Plant Maintenance and later its Manager of Engineering, testified that
the decedent was neither permitted nor invited to be on the Kedzie "L"
tracks on October 22, 1977. (Plaintiff introduced no evidence that the
presence of decedent inside the Kedzie right-of-way was known to the CTA)
In order to prevent pedestrians from entering the right-of-way at grade
crossings such as the one at Kedzie, the CTA developed a "pedestrian
access barrier system." This system was in place in July 1976, and
consisted of warning signs, right-of-way fencing, access barriers and
chain link fences, and trespass barriers, also known as "jaws." Prior to installing the "jaws"
trespass barrier system, the CTA considered three alternative protective
systems: gates which would remain closed except when a train was traveling
through the crossing, cover boards which would cover the third rail, and
catenary lines which would carry the electric current overhead. Charles Heilman, a safety expert,
testified for plaintiff that each of the above systems would have been
preferable to the system employed by the CTA. Heilman concluded that the
"jaws" were intrinsically unsafe and that the warning signs were
insufficient. Heilman gave detailed reasons for his conclusions, but
because of our view of the proceedings, it is not necessary to set forth
his reasoning. Plaintiff introduced evidence of ten
prior accidents involving injuries caused by the third rail at CTA grade
level crossings. Of those, one occurred at the Ravenswood crossing at
Kedzie in 1974. The ten accidents spanned the period from 1948 through
1975. None of the accidents occurred after the CTA placed its "jaws"
trespass barrier system at grade level crossings on the Ravenswood
line. Following the presentation of all
testimony, the parties tendered instructions to the court. Plaintiff
tendered an instruction based on her theory that the CTA was engaged in
the activity of conducting electricity. The CTA objected to plaintiff's
instruction and tendered its own instruction based on the position that
the third rail was a condition, not an activity. The court found that the
CTA was engaged in the activity of conducting electricity, and gave the
jury plaintiff's instruction charging the CTA with the duty of ordinary
care. The court refused to give the CTA's instruction. Following deliberations, the jury
returned a verdict in the sum of $3,000,000 which it reduced by 50% to
account for the plaintiff's own negligence. The CTA's motion for directed
verdict as well as its motion for judgment notwithstanding the verdict
were denied.] The Appellate Court, First District,
reversed. It ruled that the ordinary duty to trespassers was to refrain
from wilful and wanton misconduct, and the jury had specifically found
none in this case. None of the exceptions were applicable -- i.e.,
young children injured by a dangerous agency, trespassers using permissive
paths, or discovered trespassers. The Court also found that the CTA's
third rail system was a passive condition and not an activity, so as not
to fall within the exception embodied in Restatement (Second) of Torts,
section 334: "A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety. This exception has been incorporated
into Illinois Pattern Jury Instructions, Civil, 120.03. The Court relied
on Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85
(1922)(elevator shaft was a condition); Votava v. Material Service
Corp., 74 Ill. App. 3d 208, 392 N.E.2d 768 (1979)(submerged barge a
condition); and Phillips v. J.F. Martin Cartage Co., 42 Ill. App.
3d 890, 356 N.E.2d 1237 (1976)(refuse container a condition); and
distinguished Shine v. Wabash Ry. Co., 8 Ill. App. 2d 521. 132
N.E.2d 41 (1956)(operating train an activity); and McDaniels v.
Terminal R.R. Co., 302 Ill. App. 332, 23 N.E.2d 785 (1939)(lumber
thrown by employees an activity). Finally, the Court held that the CTA
was not in the business of distributing electricity, despite owning and
using transformers, and was not in the same position as a utility simply
because it redistributed electricity. -------------------------------------------------------------- ARGUMENT I. THE COMMON LAW DISTINCTION LIMITING A LANDOWNER'S DUTY TO TRESPASSERS IS BASED ON OUTMODED, IRRATIONAL BASES; THIS COURT SHOULD FOLLOW THE TREND IN OTHER JURISDICTIONS TO INSTEAD HOLD LANDOWNERS TO THE USUAL DUTY OF ORDINARY CARE UNDER THE CIRCUMSTANCES TOWARDS ALL ENTRANTS ON THE LAND, A DUTY CLEARLY BREACHED IN THIS CASE.
A. The Justifications Given
For The Traditional Limitations On Landowners' Duties To Trespassers Are
Based On A Feudal Heritage Overemphasizing The Importance Of Land, And On
Harsh Beliefs That Trespassers Are Unworthy Of The Law's
Protection. Primogeniture has long ago been
abolished. The doctrines of Worthier Title and the Rule in Shelly's Case
have faded into history. No longer does a landowner own upward to the
heavens and downward to the center of the earth; aircraft may fly overhead
without trespassing, and utilities may gain easements for their wires and
pipes. The rule of caveat emptor has been tempered or abolished; in fact,
sellers now impliedly warrant the habitability of the property they sell.
And landlords no longer are free to avoid responsibility for protecting
their tenants from harm. (1) These and other ancient doctrines
derived from our English heritage have been altered or replaced out of
recognition of their purely feudal origins, and their inconsistency with
modern life, mores, practices and problems. However, one major vestige of these
bygone times has remained, at least in theory, -- the limitation on the
landowner's duty to trespassers on the land. "At a time when landowners
were a dominant class and ownership of land was considered akin to a
sacred right, the fact that the plaintiff was a trespasser was of the
utmost importance. This attitude was reflected in the law which, in its
practical application, valued the rights and privileges of ownership 'over
the lives and limbs of trespassers.'" Scurti v. City of New York,
40 N.Y.2d 433, 354 N.E.2d 794, 796 (1976)(quoting 1 Harper & James,
Torts, p. 1438; Hughes, Duties to Trespassers, 68 Yale L.J. 633,
656-7 (1959)). (2) To be sure, as the general theory of
tort liability developed in response to a heightened awareness of the
value of human life, new justifications have been offered for the
landowner's immunity from liability to trespassers. However, we submit,
none of these are complete or satisfactory bases for the categorical rule
that a landowner owes no duty to protect a trespasser from serious
harm. Thus, it is argued that trespassers
are not foreseeable; that trespassers assume the risk of dangers on
another's land; that trespassers are themselves wrongdoers and
contributorily negligent as a matter of law; or that social policy demands
that a landowner be able to enjoy his/her land without the undue burdens
of altering the condition of the land or activities on the land. See
Miller v. General Motors Corp., 207 Ill. App. 3d 148, 565 N.E.2d
687 (4th Dist. 1990)(Appendix L, Brief of Plaintiff-Appellant); 5 Harper,
James & Gray, The Law of Torts, sec. 27.3 (2d ed. 1986)(Appendix M,
Brief of Plaintiff-Appellant); Prosser, Torts 434 (2d ed.). But these generalities surely are
not true in every case, and can not justify the blanket rule of
landowner's immunity. Thus, in many specific cases, there is no question
that trespasses frequently have occurred, and therefore are foreseeable to
the owner. Furthermore, to say that a trespasser assumed the risk of
injury would require that he/she knew of the exact risk and voluntarily
faced it; often, the facts are uncontroverted that the trespasser was
unaware of the danger present on the defendant's premises. Are trespassers
automatically wrongdoers? Very few who sue for damages are housebreakers;
most are innocent parties who stray or take short cuts across open
property, with no malevolent intent. And even if a trespasser's conduct
could be said to be wrongful in some general sense, modern concepts of
comparative fault teach us that such behavior should not automatically bar
recovery against one guilty of a greater wrong. Finally, as for the
burdens on the owner, very few suits are likely to be brought against
homeowners who were mowing their lawns, or sunning themselves by a pool,
when the plaintiff was injured; defendants usually are major businesses,
operating highly dangerous instrumentalities, and who are able to afford
mechanisms to make the premises safer. As the New York Court of Appeals
cogently said: "All of the above hypotheses
obviously have some probative value. But the facts in a particular case
might show that trespassers were foreseeable or even foreseen; that the
injury could have been prevented by a minimal effort on the part of the
landowner; and that there was no basis for finding that the trespasser
proceeded in the face of a known danger or was guilty of contributory
negligence. To say that the hypothetical factors are always present and
thus entitled to conclusive effect in all cases is the purest legal
fiction . . . ." Scurti v. City of New York, 40 N.Y.2d 433, 354
N.E.2d 794, 797 (1976). See also, 5 Harper, James &
Gray, sec. 27.3 (2d ed. 1986)(Appendix M); Hughes, Duties to
Trespassers: A Comparative Survey and Reevaluation, 68 Yale L.J. 633,
686 et seq. (1959)(Appendix K, Plaintiff-Appellant's Brief). The harshness of the common law
rules, and the resultant severe results, have led the courts to create a
number of exceptions to the no duty to trespassers rule. Thus, courts have
subdivided trespassers into discovered and undiscovered, tolerated
intruders, frequent trespassers in a limited area, and those foreseeable
in a place of danger; defendants are distinguished as to whether they are
owners, occupiers, or nonowners; distinctions have been made between an
owner's liability for activities or operations, or based on active or
passive negligence; and some courts have made owners liable for willful
and wanton conduct based on a liberalized definition of to include failure
to use ordinary care where a trespasser is discovered or foreseeable. See
general discussions in Miller v. Commonwealth Edison, 207 Ill. App.
3d 148, 565 N.E.2d 687 (4th Dist. 1990); Scurti v. City of New
York, supra. These attempts at doing justice have
instead created a maze of complex and confusing doctrine, unevenly and
therefore unfairly applied. In the words of Justice Stewart of the United
States Supreme Court: "In an effort to do justice in an
industrialized urban society, with its complex economic and individual
relationships, modern common-law courts have found it necessary to
formulate increasingly subtle verbal refinements, to create
subclassifications among traditional common-law categories, and to
delineate fine gradations in the standards of care which the landowner
owes to each. Yet even within a single jurisdiction, the classifications
and subclassifications bred by the common law have produced confusion and
conflict. As new distinctions have been spawned, older ones have become
obscured. Through this semantic morass the common law has moved, unevenly
and with hesitation, towards 'imposing on owners and occupiers a single
duty of reasonable care in all circumstances.'" Kermarec v.
Transatlantique, 358 U.S. 625, 630-31, 79 S. Ct. 406, 410 (1959). (3) This Court itself repeatedly has
noted the confusion and complexity created by the law relating to
trespassers, licensees and invitees. In a series of Annual Reports to the
Illinois Legislature, the Court has stated: "The long-standing rule in Illinois
is that the application of the categories of trespasser, licensee and
invitee determines the liability of a landowner for injuries to persons
who have entered upon the land. This rule derives from the English common
law which accorded special privileges and immunities to the occupier of
land because of the social and economic importance that land ownership
held in England . . . . These distinctions given to entrants upon
land are grounded in feudalistic notions of the importance of land
ownership and have caused confusion and complexity when applied by courts
to our modern industrial society." (The Common Law
Distinctions Among Entrants Upon Land To Determine The Degree Of Care Owed
Them By The Occupier Of The Premises Should Be Studied, Annual Report
to the Legislature p. 27 (1982), Appendix J, Plaintiff-Appellant's
Brief).(emphasis added). In recent years, approximately ten
leading jurisdictions have recognized that the common law distinctions are
no longer justified. They have substituted the rule that an owner or
occupier of land owes each entrant a duty of ordinary, reasonable care
under the circumstances. See Webb v. Sitka, 561 P.2d 731 (Alaska
1977); Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561 (1968);
Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308
(1971); Smith v. Arbaugh Restaurant, 152 App. D.C. 86, 469 F.2d 97
(1972), cert. den. 412 U.S. 939 (1972); Pickard v. Honolulu,
51 Hawaii 134, 452 P.2d 445 (1969); Cates v. Beuregard Electric Co-Op,
Inc., 328 So. 2d 367 (La. 1976), cert. den. 429 U.S. 833
(1976); Berge v. Boyne USA, Inc., 779 F.2d 1445 (9th Cir. 1986);
Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976); Basso
v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868 (1976); Mariorenzi v.
Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975); See Annot.,
Modern Status Of Rules Conditioning Landowner's Liability Upon Status
Of Injured Party As Invitee, Licensee, Or Trespasser, 22 A.L.R.4th 294
and 1991 Supp. The case which has lead the way in
revamping the law of owner's liability to entrants on the land is
Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561 (1968). The
court stressed that the most basic common law rule has been that all
persons are required to use ordinary care to prevent others from being
injured as a result of their conduct. Ordinarily, for a court to justify
making an exception from this general precept requires it to balance a
number of important considerations, the major ones being the
foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff actually suffered injury, the closeness of the connection
between defendant's conduct and the injury, the moral blame attached to
the defendant's conduct, the policy of preventing future harm, the extent
of the burden to defendant and the consequences to the community of
imposing a duty to exercise care, and the availability, cost and
prevalence of insurance for the risk involved. Applying these factors to the
exception granted landowners for liability to entrants on the land, the
court concluded that few, if any, of these factors were borne out so as to
justify the landowner's exception. The court said: "Some of those factors, including
the closeness of the connection between the injury and the defendant's
conduct, the moral blame attached to the defendant's conduct, the policy
of preventing future harm, and the prevalence and availability of
insurance, bear little, if any, relationship to the classifications of
trespasser, licensee and invitee and the existing rules conferring
immunity." "Although in general there may be a
relationship between the remaining factors and the classifications of
trespasser, licensee, and invitee, there are many cases in which no such
relationship may exist. Thus, although the foreseeability of harm to an
invitee would ordinarily seem greater than the foreseeability of harm to a
trespasser, in a particular case the opposite may be true. The same may be
said of the issue of certainty of injury. The burden to the defendant and
consequences to the community of imposing a duty to exercise care with
resulting liability for breach may often be greater with respect to
invitees, but it by no means follows that this is true in every case. In
many situations, the burden will be the same, i.e., the conduct
necessary upon the defendant's part to meet the burden of exercising due
care as to invitees will also meet his burden with respect to licensees
and trespassers. The last of the major factors, the cost of insurance,
will, of course, vary depending upon the rules of liability adopted, but
there is no persuasive evidence that applying ordinary principles of
negligence law to the land occupier's liability will materially reduce the
prevalence of insurance due to increased cost or even substantially
increase the cost." 443 P.2d at 567-68. (4) The court concluded that continued
adherence to the common law distinctions can only lead to injustice, or,
in the courts' attempts to avoid injustice, to further fictions, with
resulting complexity and confusion. Justice Peters forcefully stated: "A man's life or limb does not
become less worthy of protection by the law nor a loss less worthy of
compensation under the law because he has come upon the land of another
without permission or with permission but without a business purpose.
Reasonable people do not ordinarily vary their conduct depending upon such
matters, and to focus upon the status of the injured party as a
trespasser, licensee, or invitee in order to determine the question
whether the landowner has a duty of care, is contrary to our modern social
mores and humanitarian values. The common law rules obscure rather than
illuminate the proper considerations which should govern determination of
the question of duty." 443 P.2d at 568. In Smith v. Arbaugh's Restaurant,
Inc., 469 F.2d 97 (D.C. Cir. 1972), Chief Judge Bazelon eloquently
added to the reasons for overthrowing the common law categories: "It is the genius of the common law
that it recognizes changes in our social, economic, and moral life. Legal
classifications such as trespasser and licensee are judicial creations
which should be cast aside when they are no longer useful as controlling
tools for the jury. The principle of stare decisis was not meant to keep a
strangle-hold on developments which are responsive to new values,
experiences, and circumstances. In our opinion, the time has come to put
an end to our total reliance on these common law labels and to allow the
finder of fact to focus on whether the landowner has exercised "reasonable
care under all the circumstances." That standard contains the flexibility
necessary to allow the jury to take account of the infinite variety of
fact situations which affect the foreseeability of presence and injury,
and the balance of values which determines the allocation of the costs and
risks of human injury." 460 F.2d at 105. Thus, we respectfully urge this
Court to abolish the no longer viable immunity of landowners to
trespassers. Defendants may argue that it is not
for this Court to change the law distinguishing between invitees,
licensees and trespassers, especially since the Legislature recently has
abolished the distinctions between invitees and licensees. As to the first argument, we urge
the Court to consider the words of Justice Kelleher in Mariorenzi v.
Joseph DiPonte, Inc., 333 A.2d 127, 133 (R.I. 1975): "The time has come to extricate
ourselves from a semantical quagmire that had its beginning in ancient and
misleading phraseology. Mr. Justice Sutherland has emphasized the
judiciary's duty to bring the common law into accord with present day
standards of wisdom and justice rather than to continue with some outmoded
and antiquated rule of the past. Funk v. United States, 290 U.s. 371, 54
S.Ct. 212, 78 L.Ed. 369 (1933). The judiciary gave birth to the invitee,
licensee, trespasser trio and the judiciary can lay this triptych to rest.
Accordingly, we now give a final but fitting interment to the common law
categories of invitee, licensee, and trespasser, as well as their
extensions, exceptions, and extrapolations." The rule limiting liability to
trespassers was a judicial creation. This Court itself has emphasized that
where it is clear that the court has made a mistake, it will not decline
to correct it, even though the rule may have been re-asserted and
acquiesced in for a long number of years. Neff v. George, 364 Ill.
306, 4 N.E.2d 388 (1936). No person or entity has a vested right in any
rule of law entitling that person or entity to insist that it shall remain
unchanged for their benefit. Grasse v. Dealer's Transport Co., 412
Ill. 179, 106 N.E.2d 124 (1952). As to the argument that the
legislature already has partially abrogated the common law distinctions,
we offer the teachings of the court in Ouellette v. Blanchard, 364
A.2d 631, 634 (N.H. 1976). In response to the argument that the court
should limit the change in the common law categories to invitees and
licensees, the court said: "We are not disposed to limit our
holding to abolishment of two-thirds of the trichotomy and to retain the
category of trespassers as a legal area of immunity. Justice Kaplan in his
concurring opinion in Mounsey v. Ellard, 297 N.E.2d 43, 57 (Mass.
1973), noted: "[I]t is sometimes just as hard to distinguish trespassers
from licensees or invitees, as to distinguish licensees from invitees; and
the class of trespassers is probably just as various as either of the
other classes. The very effort at dry classification and differentiation
puts the emphasis at the wrong places." Justice Kaplan also noted the
unsatisfactory condition of the English law as to trespassers after they
were excluded from the Occupiers' Liability Act." "Our own cases previously reviewed
indicate the correctness of Justice Kaplan's concurring opinion and that
to retain trespassers as a separate category will continue the
difficulties inherent in separating licensees from trespassers and "good
trespassers" from "bad trespassers." In Maki v. Frelk, 40 Ill. 2d
193, 239 N.E.2d 445 (1968), the Court held back on changing or abolishing
the court-created doctrine of contributory negligence, and urged the
legislature to take the lead. In the intervening years, 6 bills were
introduced in the General Assembly to abolish the doctrine; all were
defeated. The legislature also enacted or reenacted provisions on
contributory negligence in several statutes. E.g., Ill. Rev. Stat. ch. 127
1/2, par. 46; Ill. Rev. Stat. ch. 34, sec. 301.1. Nevertheless, in
Alvis v. Ribar, 85 Ill. 2d 1, 421 N.e.2d 886 (1981), the Court
rejected the argument that the legislature's actions and inactions
prevented the Court from changing the common law to conform to the
changing demands of the community, by substituting the doctrine of
comparative negligence. We urge the Court to follow the
policy exhibited in Alvis. Where the legislature has, for whatever
reason, failed to completely act to remedy a gap in the common law that
results in injustice, it is imperative that the Court repair that
injustice and reform the law to meet the just demands of society. B. A Rule Holding A
Landowner To A Duty To Conform To A Standard Of Ordinary,
Reasonable Care Under The Circumstances Is More In Accordance With Modern
Mores And Values; Such A Rule Would Not Open The Doors To A Flood Of
Litigation Nor Impose Unreasonable Burdens On Landowners. The standard being urged upon this
Court is the traditional one for all other forms of negligence: A
landowner must act as a reasonable person in maintaining the owner's
property in a reasonably safe condition in view of all the circumstances,
including the likelihood of injury to others, the seriousness of the
injury, and the burden of avoiding the risk. Cf. Lance v.
Senior, 36 Ill. 2d 516, 224 N.E.2d 231 (1967). Adopting the standard of ordinary
and reasonable care under the circumstances will not open a door to a
flood of litigation and widespread liability. Nor will adoption of the
ordinary standard make the owner an insurer of his property, or require
him to endure unreasonable burdens to maintain the property. Webb v.
Sitka, 561 P.2d 731 (Alaska 1977). It will simply mean that while a
person's status on the land as invited or uninvited may have great bearing
on the question of liability, it will only be a factor -- not conclusive.
Mile High Fence v. Radovich, 489 P.2d 308, 314-15 (1971). (5) Thus, the fact that a plaintiff
entered without permission will be a relevant factor. Mariorenzi v.
Joseph DiPonte, Inc., 333 A.2d 127, 133 (R.I. 1975). It may well
demonstrate that a plaintiff's presence was not foreseeable at the time
and place of the injury. See Cunis v. Brennan, 56 Ill. 2d 372, 308
N.E.2d 617 (1974). However, the likelihood of one entering without
permission depends on the facts of the case, including the location of the
property in relation to populated areas, its accessibility, and whether
there have been any prior incidents of trespassing in the area. See
Scurti v. City of New York, 354 N.E.2d 794, 798 (N.Y. 1976). Juries
are apt to treat quite differently a plaintiff injured after climbing a
fence into a homeowner's back yard from one injured while walking a few
feet off of a public sidewalk onto an open lot. (6) Similarly, the fact that the injury
occurred on the defendant's property is certainly a relevant circumstance
in assessing the reasonableness of the defendant's conduct. The owner has
the right to use and develop property for profit and enjoyment. Often,
this means that the owner must conduct dangerous activities or permit
dangerous instruments or conditions to exist on the premises. However, the
fact of danger alone will not create liability; all that is required is
that the defendant exercise reasonable care under the circumstances, and
the defendant can always show that it would have been unduly burdensome to
have done more than it did. Scurti v. City of New York, 354 N.E.2d
at 798. C. Under A Standard Of
Ordinary, Reasonable Care Under The Circumstances, The Jury Had Ample
Basis To Find The CTA Liable. As applied to the facts of the
present case, the jury's verdict was amply supported. 1. There was an abundance of
evidence demonstrating the likelihood of injury to
plaintiff. The jury may determine the
likelihood of injury from such factors as the property's relationship to
populated areas, its accessibility, and prior similar accidents. See
Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794, 798
(1976); cf. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 531
N.E.2d 1358 (1988)(prior incidents). In the present case, the defendant
has conceded that it was foreseeable people would walk into the track area
from the nearby public sidewalk, especially since there was no barrier to
keep them out. Because of the dangerous activities in the area, injuries
to such people were highly foreseeable, especially in light of the CTA's
knowledge of numerous previous accidents. In all of the United States and
Canada, only in Chicago, on a 1 1/2 mile segment of the Ravenswood Line
(including the place where plaintiff was killed), a less than 1 1/2 mile
segment of the Douglas Line, and a few blocks segment of the Skokie Line,
do trains operate by means of electricity received from an uncovered and
non-guarded third rail, located at ground level, where the track
intersects a public street and sidewalk. (R. 619, 882) Specifically, at 19
intersections, including along the Ravenswood Line where it intersected
with Kedzie Avenue, the site of Mr. Lee's death, these trains were powered
by a high voltage third rail, located at ground level (R 342); at other
ground level intersections, trains were powered by overhead
wires.(R.882,883) In all other cities, either people or trains are routed
over or under the rail or street, or the trains use an overhead electric
wire. Moreover, at these 19 intersections,
including the Kedzie intersection, there are no gates crossing the tracks
designed to keep pedestrians from entering the track area where the third
rail is located (Exhibit 11, Appendix B, Plaintiff-Appellant's Brief); by
contrast, in Wilmette and Evanston, the CTA placed automatic track gates
across the tracks, gates which opened to allow trains through, but then
automatically closed to keep pedestrians from walking in the area of the
third rail.(R. 598, 599, 601, 896, 1172. See Appendix E,
Plaintiff-Appellant's Brief) Thus, at the Kedzie crossing on the
Ravenswood Line, thousands of people each day walk across the tracks on a
wooden walkway, only 6 1/2 feet away from virtually certain death from the
electrified third rail. (R. 260; Appendix B, Plaintiff-Appellant's Brief)
No barrier gate is present to keep them from walking into the track area;
nothing blocks them from stepping or stumbling onto the deadly third rail.
(R. 626; Appendix B) The defendant's agent admitted at trial that, prior
to 1977, the CTA was aware that "pedestrians had been gaining access to
the track area by walking into the track area from the public sidewalk."
(R. 611) In fact, the defendant's supposed safety mechanism -- cattle
boards or "jaws", pieces of pointed lumber creating an uneven surface, and
placed by the CTA from the sidewalk to the third rail -- only magnified
the possibility of someone stumbling against the third rail. (R. 626,
629) Thus, without question, the jury had
abundant evidence that the dangerous aspect of defendant's property was
located immediately adjacent to and accessible from public property, and
that pedestrians foreseeably would enter the area. A history of prior accidents at
these crossings also made the likelihood of injury great. At trial, either
by way of Request to Admit Facts, Answers to Interrogatories, Answer to
the Complaint, Stipulations, and Admissions, defendant essentially
conceded that, since 1968, it had knowledge of at least 11 incidents where
individuals had come in contact with the electrified third rail at ground
level operations of its trains. These included: 8/16/68 Douglas at Kildare. Man
found on track, fatality. 8/16/69 Douglas Park yard at 54th.
Man on track, fatality. 8/27/69 Douglas Park at Kostner.
Child on tracks, fatality. 7/13/70 Douglas Park at Kildare. Man
on tracks, fatality. 2/20/71 Douglas Park yard. Child on
tracks, fatality. 5/21/72 Leland and Virginia. Child
on tracks, boy on fence on third rail, burned arms and legs. 5/19/73 Leland. Child on tracks. 7/11/74 Ravenswood at Albany. Child on tracks, burned hands and legs on third rail. 7/13/74 Ravenswood at Kedzie. Youth
fell on rail. 8/14/74 Ravenswood at Rockwell. Boy
fell on third rail, electrocuted. 6/24/75 Douglas Park at Kildare. Boy
fell on third rail, electrocuted. Defense counsel stipulated in open
court that the "CTA could reasonably anticipate people were contacting the
third rail as it was at grade level and being killed." (R. 694, 695) CTA
management also "were aware of people contacting the third rail."
(R.435-36) Thus, it was foreseeable that
pedestrians such as plaintiff would enter the premises from the public
sidewalk. And it was foreseeable that such persons would suffer death or
great bodily harm from coming in contact with the electrified third
rail. 2. The magnitude of the
foreseeable injuries was enormous. It is hard to imagine any more
serious danger than that posed by the presence of the third rail 6 1/2
feet from the public sidewalk. The rail distributed 600 volts of
electricity along the entire length of CTA tracks. 600 volts are 1/3 of the jolt
administered by an electric chair to a condemned killer; but three times
as much as the voltage powering a television set. In the last four years
alone, newspaper articles from several urban areas show that nearly forty
people have lost their lives from receiving 600 volt shocks in third rail
accidents. (7) These stories make clear that the
chances of survival are extremely slim -- only two people survived their
encounters with the third rail. Moreover, the third rail can kill
without direct contact. In a story most apt to the facts of the present
case, the January 28, 1988 issue of Newsday, Part II, p. 3, carried the
following story: "IT WAS SURELY one of the most
bizarre deaths in the annals of New York history, let alone its medical
history. An unidentified man was traveling the subways one day when he
felt the urgent call of nature. Unable or unwilling to seek out a public
toilet, he proceeded to relieve himself on the subway tracks. But alas,
relief was not forthcoming. The arc of the man's urine hit the
third rail, conducting a high-voltage electrical current back to his body
and killing him instantly." (emph. added) In the present case, the decedent
was found near, but not against the third rail, perpendicular to it. For
all we know, he may have suffered the same fate as the New York man
described above. 3. The steps taken by the
CTA were wholly inadequate to prevent the foreseeable
injuries. The only steps taken by the CTA to try to prevent people from walking near the deadly third rail were: (1) placing so-called "jaws" in the six foot expanse between the public sidewalk and the deadly third rail (see Appendix F, Plaintiff-Appellant's Brief) to deter people from walking there; and (2) posting signs saying "DANGER - KEEP OUT Electric Current" on the utility house and fence alongside the tracks (See Appendix G, Plaintiff-Appellant's Brief). As will be demonstrated, these measures were completely inadequate to accomplish their goals. The CTA did not do several things which would have been more effective, normally: (1) using overhead trolley lines at or near intersections with public streets and sidewalks as it did at many other locations in its system, and as nearly every other city in the country does; (2) using gates to keep pedestrians out, but which open automatically to let trains pass through, and then close automatically, gates which the CTA had installed at its Wilmette and Evanston stops; (3) using covers over the third rail, at least near intersections, a method which would not interfere with the use of the third rail, but which would lessen the chances of contact with it; (4) placing rubber matting around the third rail on all sides within a reasonable distance of public crossings, to prevent grounding; or (5) placing signs that warned of the specific danger of the deadliness of the third rail, preferably consisting of universal symbols, and showing the exact location of the electrified rail. The CTA's main method of keeping
people away from the third rail was the use of cattle boards, which the
appellate court referred to as "jaws" or "pedestrian access barriers."
These were simply angled boards or logs placed on the ground between the
walkway and the end of the third rail. (See Appendix F). Historically,
they were used to prevent cattle from coming onto railroad tracks; they
were effective for animals, because their small feet made it difficult or
impossible to stand on them. However, as can been seen by the photographic
exhibits, Appendix F and G, they will not prevent a human from standing or
walking on them, though they might cause some unsteadiness. In fact, the head of defendant's
safety department admitted that the cattle boards merely tell a person he
or she is going from a smooth surface to an uneven surface.(R.727) They
"do not tell anyone there is electricity in the rail" (R 717) and "they do
not tell anyone they are six or seven feet from . . . the start of the
third rail." (R 718). One of defendant's witnesses, Mr. Millonas, agreed
that the cattle boards themselves were an unsafe surface to walk on, and
it was possible to twist an ankle or stumble while walking on them,
including the possibility of stumbling onto the third rail. (R 625-26)
Even defendant's expert witness, Mr. Wolgemuth, agreed that it was
possible for one walking on the cattle boards to trip and fall against the
third rail. (R 1256, 1261) The signs posted by the CTA clearly
were not adequate to warn of the specific dangers faced at the Ravenswood
and Kedzie crossing. The signs announced "Danger" and "Electric Current",
but did not say where the danger was, nor where the electric current was
located, nor that the electric current was lethal. (R 1126-28) See
Appendix B and G, Plaintiff-Appellant's Brief). One of the signs was on
the little house alongside the track; the other was on a saw horse inside
and next to the track. (Appendix B and G) Assuming one could see the signs
at all, it was impossible to tell where the electric current and danger
was. It could have been in the little house, or perhaps in the metal
cabinets behind the house, or in the electric wires running to the box
from above. (Testimony of Mr. Heilman, R.914-15). Mr. Heilman also pointed
out that the signs were too far back from the actual location of the
danger . . . "the warning is past the hazard itself" . . . and ineffective
unless one already knew the source of the danger. (R. 914-15) The signs did not warn of the
enormity of the danger. There was no indication of the amount of volts --
600 -- or that the current is found in the third rail -- nor any
identification of the third rail (even by painting it red). Perhaps most people who have grown
up in Chicago have learned the purpose and danger of the third rail. But
this Court may take judicial notice that the third rail system is not
prevalent in most parts of the country, and its dangers may not be a
matter of common knowledge to those from other areas. The Court may also
take judicial notice that the specific location of Ravenswood and Kedzie
is in a part of Chicago which in the last 10 years has become the center
of the Korean and other oriental immigrant population. Surely, the Court
may take judicial notice that many of these people do not know of the
dangers of the third rail; and many cannot read English well. Plaintiff's
expert, Mr. Heilman, pointed out that an international symbol, attempting
to visually explain the dangers of the third rail, was needed under these
circumstances. (R. 903-5, 914-15). Defendant's own witnesses admitted
that the signs totally failed as adequate warnings. Mr. Boyle conceded
that the signs did not tell anyone that there was danger of electrocution
from the third rail, that they made no reference to the third rail, and
that the signs did not covey the message that the electric current was
strong enough to cause death. (R 644-46) Mr. Kelly similarly testified
that the signs made no reference to the third rail, did not inform anyone
that the third rail had electricity within it, nor that the electricity
was strong enough to kill. Finally, even if the signs were more
informative, the pictures of the scene (Appendix F, G) make clear that the
signs were not lighted. It is quite unlikely the signs could have been
seen in the dark and understood. 4. The CTA could have used
much safer methods, which would have prevented the decedent's death,
without an undue financial or other burden. Several methods could have been used
by the CTA to eliminate the enormous danger to the public of the third
rail at ground level. The most effective way to eliminate
the danger would have been to eliminate the use of the third rail on
ground level. (R 870) The total distance where the third rail is used to
power trains is 3.2 miles. (R 873) The third rail could be replaced by a
catenary system (a trolley or overhead wire system) like those used on
several railroads, including the South Shore Line. (R. 873) It is possible
to engineer the system to run on a third rail on the elevated portion of
the system, and switch to an overhead, catenary system when it reaches
ground level. (R. 394, 614) At a minimum, the CTA could have used the
catenary system to power its trains at the 19 intersections with public
streets and sidewalks, where the dangers to foreseeable victims were most
acute. Testimony also demonstrated that the
CTA could have guarded the third rail at ground level, and particularly at
ground level crossings, by using systems in place in all other parts of
the United States -- normally, cover boards over the third rail. (R
885-86) The "shoe" -- the device on the train which collects the
electricity from the third rail -- would have to be modified, but the CTA
would not have to make changes in the third rail itself or the
right-of-way. (R 988-89) Again, the cover board system could at least have
been used at and near the 19 intersections with public streets and
sidewalks, where the dangers to foreseeable victims were most acute. Finally, the CTA could have treated
the citizens of Chicago equally with those in Wilmette and Evanston: it
could have installed track gates to keep people away from the third rail
at grade level crossings. (R 888) When the CTA converted the means of
powering its trains from overhead wire to third rail at ground level, at
the request of the two Villages, the CTA installed chain-link fence gates,
which automatically opened and closed to let trains through. These gates
were closed when trains were not crossing, and are as effective as any
fence in keeping people away from the deadly third rail. (See Appendix E,
Plaintiff-Appellant's Brief) There have been no injuries or deaths at
those third rail grade level crossings from the time of their installation
to the time of this trial. (R 425, 1185) Nor was there a serious accident
from a train striking a gate which did not open from 1973 to the time of
trial. (R 1185) Defendant did a study on the cost of
installing such gates at all of its ground level crossings. The cost in
1975 would have been $575,000, with annual maintenance cost of $87,000.
All of defendant's experts agreed that similar sliding gates were feasible
from an engineering standpoint at the grade level crossings in Chicago,
and specifically at the Ravenswood/Kedzie crossing. (R 898-901, 429,
1246) Thus, in summary, it was the
defendant CTA's choice to power its trains by electricity distributed by
an uncovered third rail, with no barrier gates at ground level crossings.
It chose to place the third rail approximately 6 feet from the edge of a
busy public walkway in a busy inner city area. It chose to give minimal
warning of the danger of the third rail itself, a rail which appears
harmless as the other three rails (two running rails and one negative
return rail) that run along the ground near it. The CTA chose this course
knowing that pedestrians had been coming into the track area from the
sidewalk, and knowing from past accidents of the reasonable possibility of
future third rail accidents. And it chose not to utilize safer methods,
used elsewhere on its own system, and throughout the rest of the country.
The foreseeability of harm, the magnitude of the injury to be foreseen,
and the relatively slight burden on the defendant to make the operation
safe, easily justified the jury verdict finding that the CTA had not used
ordinary, reasonable care under the circumstances. II. ALTERNATIVELY, THIS
COURT SHOULD REVERSE THE APPELLATE COURT AND REINSTATE THE JURY'S VERDICT
EITHER BY ABOLISHING THE DISTINCTION BETWEEN ACTIVITIES AND CONDITIONS ON
THE LAND, OR BY FINDING THAT THE CTA'S OPERATION OF ITS TRAINS BY MEANS OF
THE ELECTRICALLY CHARGED THIRD RAIL SYSTEM IS AN ACTIVITY. The Appellate Court reversed the
trial court's verdict in the present case by finding that the CTA was not
conducting an affirmative activity when the decedent sustained his fatal
injuries. (Appendix A, p. 12) It concluded that the use of lethal amounts
of electric energy is not akin to the operation of a train, Shine v.
Wabash Ry. Co., 8 Ill. App. 2d 521, 132 N.E.2d 41 (1956), or throwing
lumber, McDaniels v. Terminal R.R. Co., 302 Ill. App. 332, 23
N.E.2d 785 (1939); rather, it was like a submerged barge, Votava v.
Material Service Corp., 74 Ill. App. 3d 208, 392 N.E.2d 768 (1979), or
an elevator shaft, Marcovitz v. Hergenrether, 302 Ill. 162, 134
N.E. 85 (1922), or a refuse container, Phillips v. J.E. Martin Cartage
Co., 42 Ill. App. 3d 890, 356 N.E.2d 1237 (1976). We earnestly submit that the attempt
to distinguish between affirmative activities and passive conditions, at
least as applied to the facts of this case, makes little sense. In any
case, we submit that the use of the third rail, with dynamic, active
forces of electrified energy flowing through it, as the mechanism powering
numerous multi-ton trains at the same time, and at high speeds, is
certainly different than a dormant, inactive, quiescent garbage can or
submerged hunk of metal. The historical attempts to
distinguish a landowner's obligations to trespassers from activities and
from conditions provides one of the examples of the complexity and
confusion that the common law distinction has spawned, and which has led
the cases, discussed in section I, to throw out the basic rule itself. As
is well pointed out in Plaintiff-Appellant's Brief, the distinction may
make some sense in distinguishing activities from natural conditions on
the land, such as ponds of water, or trees, or hills; it really makes no
sense in the case of artificial "conditions." Thus, is a purely stationary truck
containing explosives a passive condition when plaintiff runs into it and
it explodes? Has the plaintiff only been injured by a passive condition on
the land when he falls into a pit of smoldering embers just because the
owner is not there stoking the fire? Should it make a difference that a
plaintiff steps into a vat of toxic wastes or instead suffers injuries
when the owner negligently spills some of the toxic materials from a
truck? Is gasoline in a tank only a passive condition, even though it is
being actively used to power a huge truck? Is the water boiling in a steam
engine only a condition even though the steam it generates is powering
massive and dangerous equipment? The third rail here is an essential
component of the CTA's machinery. It is like the power cord on an electric
chainsaw; it is the driving force for the pistons, brakes and other
machinery on each of the many trains operating at any one time on the
transit system. It simply cannot be equated to an inert pile of submerged
steel, a non-operating refuse container, or an inanimate, motionless
shaft, through which active machinery passes. In a host of other contexts, the
Illinois courts continuously have referred to the use of electricity as an
"activity." Eg., Peoria Chapter, National Contractors Ass'n v.
Central Illinois Light Co., 37 Ill. 2d 55, 225 N.E.2d 625
(1967)(distribution of electrical energy is an activity . . .);
Phillips v. Illinois Bell Telephone Co., 34 Ill. 2d 234, 215 N.E.2d
264 (1966)(sale of electricity is an activity); Peoples Gas, Light
& Coke Co. v. City of Chicago, 413 Ill. 457, 109 N.E.2d 777
(1952)(operation of electric trains as a proprietary or governmental
activity); Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54,
566 N.E.2d 1283 (1990)(generating and selling electric power is an
activity that affects the whole community); Nelson v. Commonwealth
Edison, 124 Ill. App. 3d 655, 465 N.E.2d 513 (1984)(transmission of
high voltage electricity is a dangerous activity); and Fallon v. Indian
Trail School, 148 Ill. App. 3d 931, 500 N.E.2d 101 (1986)(dangerous
activities, such as blasting, transport of explosives, maintenance of high
electrical current . . . .). While none of these, except Nelson,
concerned liability for damages, we believe it is telling that the natural
inclination of the writers of these opinions is to automatically associate
the idea of electricity with activities, and not as a condition on the
land. In conclusion, we submit that this Court should no longer distinguish between artificial conditions on the land and active operations in applying the duty of a landowner to an entrant on the land foreseeably in a place of danger; should the Court disagree and choose to maintain the distinction, we feel that there is little doubt in this case that the CTA's third rail system is an activity carried on. In either case, the Court should reverse the decision of the Appellate Court and reinstate the jury's verdict in the trial court. CONCLUSION
For the above reasons, the Illinois
Trial Lawyers Association, as Amicus Curiae, urges the Court to reverse
the decision of the Illinois Appellate Court for the First District, and
to reinstate the jury verdict and judgment thereon entered in the Circuit
Court of Cook County in favor of the Plaintiff, Jae Boon Lee,
Administratrix of the Estate of Sang Yeul Lee, Deceased. 1. These are by no means exhaustive examples of the changes which have affected landowners. Other changes in the law have occurred in the areas of environmental regulations, zoning restrictions, nuisance law, the increased scope of liability for abnormally dangerous or ultrahazardous conditions, liability in urban areas for rotten trees, and the reallocation of the risk of loss between sellers and buyers. 2. "The prestige and dominance of the landowning class in the nineteenth century contributed to the common law's emphasis on the economic and social importance of free use and exploitation of land over and above the personal safety of those who qualified as trespassers or licensees." Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 101 (D.C. Cir. 1972). 3. And see Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 567 (1968): "Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules - they are all too easy to apply in their original formulation - but is due to the attempts to apply just rules in our modern society within the ancient terminology." 4. It should be stressed that in France, a civil law jurisdiction, which does not adhere to the common law immunities, there has been no unwarranted number of plaintiffs' verdicts. Hughes, Duties To Trespassers: A Comparative Survey And Revaluation, 68 Yale L.J. 633, 672-73 (1959); Mariorenzi v. DePone, Inc., 333 A.2d 127, 133 n.4 (1975). 5. "Eliminating reliance on the common law classifications does not leave the jury awash, without standards to guide its determination of reasonable conduct. The principles which are now to be applied are those which have always governed personal negligence under our jurisprudence. The factors to be weighed in the determination of the degree of care demanded in a specific situation are 'the likelihood that [the landowner's] conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which [the landowner] must sacrifice to avoid the risk' and the jury should be so instructed." Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 105-06 (1972), quoting Judge Learned Hand in Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir. 1940). 6. "The realities of modern life teach us that these labels are today irrelevant to a jury's task. Personal status no longer depends on one's relation to real property. With urbanized society comes closer living conditions and a more gregarious population. The trespasser who steps from a public sidewalk onto a private parking lot today is not the 'outlaw' or 'poacher' whose entry was both unanticipated and resented in the nineteenth century. It is contrary to reason to accept as a settled principle of law that a parking lot owner actually varies his conduct according to the status of those who walk across his boundaries." Smith v. Arbaugh's Restaurant, 469 F.2d 97, 103 (D.C. Cir. 1972)(Bazelon, C.J.) (Emph. added). 7. Chicago Tribune, April 29, 1990, Chicagoland, p. 3
(Man, 19, dies after falling on CTA rail); Newsday, Jan. 22, 1990, News p.
7 (Queens teen killed on LIRR Tracks); Time Magazine, Jan. 15, 1990, p.
153 (jury awards $13 million in damages to homeless man and family of late
brother after the men came in contact with electrified city subway
tracks); Chicago Tribune, Sept. 22, 1989, Chicagoland p. 3 (Boy
electrocuted on elevated tracks); The Boston Globe, Sept. 6, 1989, Metro
p. 29 (Dorchester boy electrocuted by T rail); Newsday, Aug. 9, 1989, News
p. 7 (Grieving In The Station - subway accident); Newsday, Aug. 3, 1989,
News p. 28 (Boy, 11, is found dead - electrocuted by third rail); Chicago
News Star, Oct. 11, 1989 (Sympathy isn't enough - Robt. Barrera died July
31 on the third rail on the Ravenswood Line); Chicago Tribune, May 21,
1989, Chicagoland p. 11 (Obituary, Philip Padgett, 17, after falling
on the third rail near the Kedzie Avenue station on the Ravenswood
line)(emph. added); Chicago Sun Times, May 20, 1989 (Boy found dead
on CTA 3rd rail); Chicago Tribune, April 29, 1989, News p. 5 (man
electrocuted at CTA train stop); The New York Times, Oct. 8, 1988, Section
1, p. 32 (Harlem man killed by a subway train); Chicago Tribune, July 30,
1988, News p. 5 (Painter killed on "L" platform - fell onto third rail);
Newsday, July 25, 1988, News p. 22 (Dead man is identified -arm struck
third rail); United Press International, Aug. 18, 1987, Regional News
(unidentified man electrocuted on third rail); Chicago Tribune, Feb. 3,
1987, City (Boy burned in fall on 'L' track's 3d rail). Nexis Library
(emph.
added). |