National Railroad Passenger Corporation v. Terracon Consultants, Inc. , 2014 IL App (5th) 130257 ( 2014 )

NOTICE
2014 IL App (5th) 130257Decision filed 07/01/14. The
text of this decision may be NO. 5-13-0257
changed or corrected prior to
the filing of a Petition for
IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
NATIONAL RAILROAD PASSENGER CORPORATION, ) Appeal from the
KATHY M. RICHARDSON, GATEWAY EASTERN ) Circuit Court of
RAILWAY COMPANY, KANSAS CITY SOUTHERN ) Madison County.
RAILWAY COMPANY, UNION PACIFIC RAILROAD )
COMPANY, PLATTE PIPE LINE COMPANY, KINDER )
MORGAN PIPELINES (USA), INC., and KINDER )
MORGAN CANADA, INC., )
)
Plaintiffs-Appellants, )
)
v. ) No. 09-L-871
)
TERRACON CONSULTANTS, INC., and MATTHEW S. )
BALVEN, as Special Administrator of the Estate of Heather )
S. Balven, Deceased, ) Honorable
) Dennis R. Ruth,
Defendants-Appellees. ) Judge, presiding.
____________________________________________________________________________________________
JUSTICE SPOMER delivered the judgment of the court, with opinion.
Justices Goldenhersh and Stewart concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs, National Railroad Passenger Corporation, Kathy M. Richardson,
Gateway Eastern Railway Company, Kansas City Southern Railway Company, Union
Pacific Railroad Company, Platte Pipe Line Company, Kinder Morgan Pipelines (USA),
Inc., and Kinder Morgan Canada, Inc., appeal the order of the circuit court of Madison
County that dismissed their complaint for contribution against the defendants, Terracon
1
Consultants, Inc. (Terracon), and Matthew S. Balven, as special administrator of the
estate of Heather S. Balven, deceased (Heather's estate). For the following reasons, we
affirm in part, reverse in part, and remand for further proceedings.
¶2 FACTS
¶3 The facts necessary to our disposition of this appeal are as follows. On March 12,
2009, while in the course of her employment with defendant Terracon, and while driving
a pickup truck owned by Terracon, decedent Heather S. Balven collided with an Amtrak
train at a railroad grade crossing in Hartford. Both Heather and her unborn fetus of
approximately three months gestation (subsequently named Morgan A. Balven) were
killed instantly in the collision. Litigation ensued, and the plaintiffs in this action settled
wrongful death claims brought by Heather's estate and by Morgan's estate. Following
those settlements, the plaintiffs brought this contribution action against Terracon (count I)
and against Heather's estate (count II), alleging that both Terracon and Heather were
guilty of acts of negligence that caused the collision and therefore proximately caused
Morgan's death. The allegations against Terracon, found in count I, consisted of six
alleged acts of negligence on the part of Heather for which Terracon was allegedly
vicariously liable, and a seventh alleged act of negligence that was allegedly directly
attributable to Terracon and separate from any negligence on the part of Heather: the
alleged failure of Terracon "to properly train and instruct its employees, including
[Heather], concerning safety procedures and practices while crossing railroad tracks
during the performance of their duties."
¶4 Heather's estate moved to dismiss count II, contending that Heather owed no legal
2
duty to her unborn fetus, and that in the absence of a legal duty, no cause of action was
stated or could be stated against Heather's estate by the complaint for contribution. At
the hearing on the motion to dismiss, Terracon orally moved to join Heather's estate's
motion to dismiss, but did not assert, orally or in writing, any separate or additional
grounds for dismissal. Following the hearing, the trial court dismissed both counts of the
complaint for contribution, pursuant to Stallman v. Youngquist, 125 Ill. 2d 267 (1988),
and Cullotta v. Cullotta, 287 Ill. App. 3d 967 (1997). This timely appeal followed.
Additional facts will be provided as necessary throughout the remainder of this opinion.
¶5 ANALYSIS
¶6 We review de novo the trial court's order dismissing this action. Gregory v.
Farmers Automobile Insurance Ass'n, 392 Ill. App. 3d 159, 161 (2009). The arguments
of the parties on appeal may be stated quite succinctly: the defendants contend that under
Stallman v. Youngquist, 125 Ill. 2d 267 (1988), no cause of action exists in Illinois by or
on behalf of a fetus against its mother for the unintentional infliction of prenatal injuries,
or even prenatal death, and that, in the absence of such a cause of action, no contribution
claim may be sustained under the Joint Tortfeasor Contribution Act (the Act) (740 ILCS
100/0.01 et seq. (West 2008)). The defendants also contend that: (1) there was no duty
owed by Heather to the general public that would render Heather's estate "subject to
liability in tort" under the Act to Morgan's estate for Morgan's death, the injury for which
the plaintiffs seek contribution; (2) under Stallman, because there is no legal duty on the
part of a mother to her unborn child, there is no proper cause of action by Morgan's estate
for wrongful death against Heather's estate; and (3) no claim for contribution against
3
Terracon, as Heather's employer, for negligent supervision or training of Heather can
stand because the portion of the plaintiffs' complaint purporting to state this claim against
Terracon contains only conclusory factual allegations and therefore asserts no cognizable
cause of action.
¶7 The plaintiffs, on the other hand, contend that because Stallman did not involve a
contribution claim, it should not be read so broadly as to bar the claim in this case.
Instead, the plaintiffs point to People v. Brockman, 143 Ill. 2d 351, 371 (1991), wherein
the Supreme Court of Illinois held that "there need not be actual tort liability in order to
state a cause of action for contribution," as long as "the persons from whom contribution
is sought are potentially capable of being held liable in a court of law or equity," said
potential for liability depending "merely upon their relative culpability in causing the
same injury." The plaintiffs point out that under Brockman, "[s]o valued are principles of
fairness and the avoidance of unjust enrichment that even if a person who might
otherwise be immune has contributed as a cause to the injury he should be liable in
contribution" "even though he cannot be directly liable to the plaintiff." Id. at 373-74.
The plaintiffs also contend there is no conflict in this case with Stallman, because
Stallman dealt only with situations in which a fetus was subsequently born alive, and thus
the public policy considerations before the Stallman court−which involved the far-
ranging implications of allowing a living infant to assert liability against his or her
mother for alleged prenatal injuries attributable to the mother's conduct during
pregnancy−are not implicated in a case such as this one, where the fetus did not survive.
¶8 The plaintiffs further contend: (1) Heather breached a duty owed to the general
4
public, including the plaintiffs, and that Stallman notwithstanding, the defendants are
"subject to liability in tort" as a result of that breach; (2) the defendants are "subject to
liability in tort" because Stallman does not preclude a wrongful death claim on the behalf
of Morgan's estate against Heather's estate, and thus does not preclude a contribution
claim by the plaintiffs with regard to that wrongful death claim; and (3) the trial court
erred in dismissing the plaintiffs' claim for contribution against Terracon for failure "to
properly train and instruct its employees, including [Heather], concerning safety
procedures and practices while crossing railroad tracks during the performance of their
duties."
¶9 With regard to the plaintiffs' claim that Stallman is not applicable to this case
because it did not involve a contribution claim and it did not involve a fetus who did not
survive the injuries allegedly inflicted by the tortfeasor, we agree with the defendants that
under Stallman there is simply no duty owed by Heather to Morgan, and that a
contribution claim brought under the Act pursuant to this nonexistent duty is not
sustainable. As the defendants point out, although a cause of action for the wrongful
death of an unborn fetus does exist in Illinois, against the world at large, no Illinois court
has recognized that cause of action when asserted against the mother of the unborn fetus.
We are not persuaded by the plaintiffs' argument that the public policy considerations
discussed in Stallman−which, as noted above, involved a fetus subsequently born
alive−do not apply equally when the fetus does not survive. As the defendants point out,
declining to recognize the applicability of the Stallman holding to situations where a fetus
does not survive the injuries allegedly inflicted unintentionally by the mother of the fetus
5
would create the paradoxical and potentially unjust situation wherein a fetus that did not
survive its injuries could bring a claim against its mother, but a fetus that did survive its
injuries could not. We agree with the defendants that duty should not hinge on the nature
and extent of the injury involved. The Stallman court declined to recognize a legal duty
on the part of a pregnant woman, during her pregnancy, to "guarantee the mental and
physical health of another" at birth, because the recognition of such a legal duty would
create an environment wherein "[m]other and child would be legal adversaries from the
moment of conception until birth." Stallman v. Youngquist, 125 Ill. 2d 267, 276 (1988).
¶ 10 In accordance with this reasoning, and the other thoughtful and compelling public
policy reasoning put forward by the Stallman court (see id. at 276-80), we believe the
court likewise would have rejected the idea that a pregnant woman has a legal duty,
during her pregnancy, to guarantee that her fetus will survive to birth, as that too would
create an environment where mother and child were legal adversaries during the
pregnancy. Accordingly, although we recognize that the Wrongful Death Act (740 ILCS
180/0.01 et seq. (West 2008)) itself does not specifically prevent an unborn fetus from
asserting a claim against an allegedly negligent mother, we hold that the recognition of a
cause of action for wrongful death asserted by an unborn fetus against the mother of the
fetus would be incongruent with the reasoning underlying the Stallman holding that there
is no duty on the part of a mother to her unborn fetus. Therefore, we decline to recognize
such a duty and such a cause of action.
¶ 11 We also agree with the defendants that the detailed and specific reasoning found in
Cullotta v. Cullotta, 287 Ill. App. 3d 967, 972-74 (1997), with regard to the distinction
6
between immunity from liability and lack of duty trumps the more general aspirational
statements about the relationship between immunity and contribution under the Act found
in People v. Brockman, 143 Ill. 2d 351, 373-74 (1991), cited by the plaintiffs. The
Cullotta court ruled that in the absence of a legal duty of care owed to a plaintiff by a
defendant, "no cause of action is stated" because "[t]he existence of a legally recognized
duty is a prerequisite to the very existence of a cause of action, whereas, the existence of
an immunity merely affords a tortfeasor an affirmative defense to a plaintiff's right to
recovery." 287 Ill. App. 3d at 973. Accordingly, the Cullotta court reiterated that,
pursuant to Stallman, "no cause of action can be stated for maternal prenatal negligence."
Id. at 974. In the case at bar, Heather owed no duty to Morgan, and thus there is no set of
circumstances under which Heather's estate can be "subject to liability in tort" to
Morgan's estate.
¶ 12 The plaintiffs also posit that, aside from any duty owed by Heather to Morgan,
Heather also breached a duty owed to the general public, including the plaintiffs, and that
Stallman notwithstanding, the defendants are "subject to liability in tort" under the Act as
a result of that breach. The plaintiffs concede that no Illinois courts have recognized such
a duty, but cite a number of cases from New York in which courts have, and urge us to
adopt the position of those courts. We are not persuaded by the reasoning of the New
York courts and decline to adopt the position advocated by the plaintiffs. Accordingly,
no contribution claim against Heather's estate under the Act is sustainable, and the trial
court did not err in dismissing the plaintiffs' claims against Heather's estate.
¶ 13 Likewise, because no cause of action against Heather's estate exists that would
7
make it "subject to liability in tort" under the Act to Morgan's estate, the plaintiffs' claims
against Terracon for contribution under the Act for the six alleged acts of negligence by
Heather for which Terracon was allegedly vicariously liable, under the theory of
respondeat superior, fail as well. See, e.g., Carey v. K-Way, Inc., 312 Ill. App. 3d 666,
672 (2000) (no liability for employer under theory of respondeat superior where no
liability on part of employee).
¶ 14 We now address the plaintiffs' contention that the trial court erred in dismissing
the plaintiffs' final claim for contribution against Terracon, which was based upon a
seventh alleged act of negligence that, unlike the previous six acts, was allegedly directly
attributable to Terracon and separate from any negligence on the part of Heather: the
alleged failure of Terracon "to properly train and instruct its employees, including
[Heather], concerning safety procedures and practices while crossing railroad tracks
during the performance of their duties." As noted above, although Terracon, at the
hearing on Heather's estate's motion to dismiss, orally moved to join that motion,
Terracon did not assert, orally or in writing, any separate or additional grounds for
dismissal. Not surprisingly, Heather's estate's motion to dismiss did not attack the
plaintiffs' negligent-training claim against Terracon, which, as noted above, was based
upon the purported conduct of Terracon, not of Heather. Accordingly, although Terracon
now asserts multiple reasons why it claims we should affirm the dismissal of the
plaintiffs' complaint, even with regard to the negligent-training claim, those reasons were
never presented to the trial court, although they should have been and very easily could
have been. Therefore, we agree with the plaintiffs that Terracon's objections to the
8
pleadings of the plaintiffs should only be considered on appeal if the plaintiffs' complaint,
"with all the intendments in its favor, wholly and absolutely fails to state a cause of action
at all." Oberman v. Byrne, 112 Ill. App. 3d 155, 159 (1983); see also 735 ILCS 5/2-
612(c) (West 2012) ("All defects in pleadings, either in form or substance, not objected to
in the trial court are waived.") and Naiditch v. Shaf Home Builders, Inc., 160 Ill. App. 3d
245, 259 (1987) (complaint does not "wholly and absolutely" fail to state a cause of
action if, had alleged deficiencies been raised in trial court, plaintiff "might have
remedied the pleading defects now complained of for the first time on appeal"). For the
following reasons, we cannot conclude that the plaintiffs' claim against Terracon, with all
the intendments in its favor, wholly and absolutely fails to state a cause of action at all.
¶ 15 As the plaintiffs point out, a claim for negligent training is "best analyzed under
principles generally applicable to negligence cases." Vancura v. Katris, 238 Ill. 2d 352,
383 (2010). Therefore, the cases cited by the trial court in its order, both of which were
pertinent to the lack of liability on the part of Heather's estate, and the lack of vicarious
liability on the part of Terracon, due to Heather's lack of a duty to Morgan, do not support
the dismissal of the plaintiffs' negligent-training claim, which, under principles generally
applicable to negligence cases, requires an analysis of Terracon's duty to Morgan, apart
from any duty owed by Heather, on the basis of the conduct of Terracon in its training of
Heather. That is because a direct claim of negligence against an employer, such as a
claim for negligent hiring, negligent training, or negligent supervision, differs from a
vicarious liability, or respondeat superior, claim. Id. at 375. The latter type of claim
generally requires no "malfeasance on the part of the employer," but only legal liability
9
on the part of the employee, which is then imputed to the employer. Id. The former type
of claim, in contrast, requires that the plaintiff prove "that the employer was itself
negligent." (Emphasis in original.) Id. The plaintiff must prove the existence of a duty
on the part of the employer to the injured party, a breach of that duty, and an injury
proximately caused by the breach. Id. "In direct negligence, the plaintiff must prove that
the employer's breach–not simply the employee's malfeasance–was a proximate cause of
the plaintiff's injury." Id. Significantly, although Illinois courts speak of some type of
malfeasance, wrongdoing, or negligence on the part of the employee that results from the
negligent hiring, training, or supervision of the employer and thus leads to the direct
liability of the employer, no Illinois case of which we are aware has held that the
employee must actually be liable in tort in order for the causes of action to lie. See
Young v. Lemons, 266 Ill. App. 3d 49, 52 (1994) (noting in negligent hiring and negligent
supervision case that proximate cause focus is on employer's "failure to exercise ordinary
care in hiring or supervision, rather than the wrongful act of the employee" and that no
Illinois case requires employee's wrongful act to result in liability in tort on part of
employee). Accordingly, the fact that Heather cannot be held liable in tort by Morgan
solely because of her special relationship to Morgan as Morgan's mother is not, in and of
itself, determinative of whether Terracon can be held liable in tort by Morgan for its
allegedly negligent training of Heather.
¶ 16 Terracon asserts, citing in support thereof a negligent-entrustment case, that we
should nevertheless affirm the dismissal of the negligent-training claim, pursuant to the
language in Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 928 (2002), that the
10
liability of an employer cannot exceed the liability of an employee. However, we agree
with the plaintiffs that Terracon takes the Gant holding out of context; in fact, what the
Gant court recognized was that when an employer has conceded responsibility, under the
theory of respondeat superior, for an employee's negligence, the employer cannot also be
held responsible under a separate theory of negligent entrustment, because under those
circumstances, "the cause of action for negligent entrustment is duplicative and
unnecessary" and allowing it to stand would allow the trier of fact "to assess or apportion
a principal's liability twice." Id. at 929-30. In the case at bar, Terracon has not conceded
responsibility under a theory of respondeat superior, and indeed we have held that
Terracon has no liability under the theory of respondeat superior. Thus, the negligent-
training claim is not duplicative and unnecessary, and allowing it to stand will create no
danger of a judge or jury assessing or apportioning Terracon's alleged liability twice.
¶ 17 Accordingly, although we otherwise affirm the order of the trial court, we reverse
the order with regard to the plaintiffs' negligent-training claim against Terracon and
remand for further proceedings, at which time both parties may seek leave of court to
amend their pleadings so that the court may adjudge the viability or nonviability of that
claim.
¶ 18 CONCLUSION
¶ 19 For the foregoing reasons, we affirm in part, reverse in part, and remand for
further proceedings.
¶ 20 Affirmed in part and reversed in part; cause remanded.
11
2014 IL App (5th) 130257NO. 5-13-0257
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_____________________________________________________________________________________
NATIONAL RAILROAD PASSENGER CORPORATION, ) Appeal from the
KATHY M. RICHARDSON, GATEWAY EASTERN ) Circuit Court of
RAILWAY COMPANY, KANSAS CITY SOUTHERN ) Madison County.
RAILWAY COMPANY, UNION PACIFIC RAILROAD )
COMPANY, PLATTE PIPE LINE COMPANY, KINDER )
MORGAN PIPELINES (USA), INC., and KINDER )
MORGAN CANADA, INC., )
)
Plaintiffs-Appellants, )
)
v. ) No. 09-L-871
)
TERRACON CONSULTANTS, INC., and MATTHEW S. )
BALVEN, as Special Administrator of the Estate of Heather )
S. Balven, Deceased, ) Honorable
) Dennis R. Ruth,
Defendants-Appellees. ) Judge, presiding.
_____________________________________________________________________________________
Opinion Filed: July 1, 2014
_____________________________________________________________________________________
Justices: Honorable Stephen L. Spomer, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Bruce D. Stewart, J.,
Concur
_____________________________________________________________________________________
Attorneys Richard E. Boyle, Leslie B. Shinners, Boyle Brasher LLC, 5000 W. Main Street,
for P.O. Box 23560, Belleville, IL 62223-0560; Mark E. Christensen, Katherine
Appellants Amelotte Jones, Christensen & Ehret LLP, 135 South LaSalle, Suite 4200,
Chicago, IL 60603
_____________________________________________________________________________________
Attorneys Roger F. Wilson, Law Office of Stephen H. Larson, 940 West Port Plaza, Suite
for 208, St. Louis, MO 63146 (attorney for Terracon Consultants, Inc.)
Appellees
Susan M. Herold, Jeffrey K. Suess, Rynearson, Suess, Schnurbusch &
& Champion, LLC, 500 N. Broadway, Suite 1550, St. Louis, MO 63102
(attorneys for Matthew S. Balven, as Special Administrator of the Estate of
Heather S. Balven, Deceased)
_____________________________________________________________________________________