Wisnasky v. CSX Transportation, Inc. , 2020 IL App (5th) 170418 ( 2020 )

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Appellate Court Date: 2020.09.08
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Wisnasky v. CSX Transportation, Inc., 2020 IL App (5th) 170418Appellate Court SCOTT WISNASKY, as Next Friend and Kin and Administrator of
Caption the Estates of Dr. W., Deceased, and A.W., Deceased, and as
Administrator of the Estate of Alyssa Sewell, Deceased, and as Father
and Next Friend of Dy. W., a Minor, Plaintiff-Appellee, v. CSX
TRANSPORTATION, INC.; CSX CORPORATION; JOHN
BRADLEY; VANDALIA RAILROAD COMPANY; PIONEER
RAILCORP, INC.; PIONEER RAILROAD SERVICES, INC.; THE
ESTATE OF CRYSTAL ANNA; VANDALIA CIVIC
ADVANCEMENT ASSOCIATION, INC.; VANDALIA LIONS
CLUB, INC.; and THE CITY OF VANDALIA, ILLINOIS,
Defendants (The City of Vandalia, Illinois, Defendant-Appellant).
District & No. Fifth District
No. 5-17-0418
Rule 23 order filed March 13, 2020
Motion to
publish allowed April 6, 2020
Opinion filed April 6, 2020
Decision Under Appeal from the Circuit Court of Fayette County, No. 15-L-15; the
Review Hon. Michael D. McHaney, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Certified questions answered.
Counsel on William P. Hardy, of Hinshaw & Culbertson LLP, of Springfield,
Appeal Charles Pierce, of Pierce Law Firm, P.C., of Belleville, and Joseph A.
Bleyer, of Bleyer and Bleyer, of Marion, for appellant.
Gregory L. Shevlin, of Cook, Bartholomew, Shevlin & Cook, LLP, of
Belleville, and Robert L. Pottroff (pro hac vice) and Nathan L. Karlin
(pro hac vice), of Pottroff & Karlin LLC, of Manhattan, Kansas, for
appellee.
Panel JUSTICE BARBERIS delivered the judgment of the court, with
opinion.
Justices Moore and Wharton concurred in the judgment and opinion.
OPINION
¶1 This cause comes before this court as an interlocutory appeal pursuant to Illinois Supreme
Court Rule 308 (eff. July 1, 2017). Plaintiff-appellee, Scott Wisnasky, as administrator of the
estates of Dr. W., A.W., and Alyssa Sewell, and as father of Dy. W., filed a wrongful death
and personal injury action against the above-named defendants after a tragic accident, which
claimed the lives of two of his children, Dr. W. and A.W., and seriously injured a third, Dy.
W., at a railroad crossing in Vandalia, Illinois. The accident also took the life of Crystal Anna,
the children’s mother, and her adult child, Alyssa Sewell. The circuit court of Fayette County
certified two questions for permissive interlocutory review after it denied the defendant-
appellant’s, the City of Vandalia, Illinois (Vandalia), motion to dismiss that was filed in
response to plaintiff’s second amended complaint. The two questions certified for appellate
consideration are as follows:
“1. Whether, assuming all well pled facts of Plaintiff’s Second Amended Complaint
(incorrectly titled ‘Complaint at Law’) are true, [Vandalia] is entitled to absolute
immunity on the counts brought against [it] under one or more of the following
provisions of the Local Governmental Tort Immunity Act: 745 ILCS 10/4-102, 10/2-
201, 10/2-103, 10/2-104, 10/2-105 and/or 10/3-104[;] [and]
2. Whether, assuming all well pled facts of Plaintiff’s Second Amended Complaint
(incorrectly titled ‘Complaint at Law’) are true, [Vandalia] owed a duty to protect
Crystal Anna and the occupants of her vehicle from the hazards associated with the
railroad crossing where the accident occurred.”
¶2 After this court initially denied Vandalia’s petition for leave to appeal pursuant to Illinois
Supreme Court Rule 308 (eff. July 1, 2017), Vandalia filed a petition for leave to appeal with
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the Illinois Supreme Court. The supreme court denied Vandalia’s petition but entered a
supervisory order directing this court to vacate its denial, allow the application for leave to
appeal, and address the certified questions. Accordingly, we now issue this opinion.
¶3 I. BACKGROUND
¶4 The following facts were taken from the second amended complaint 1 filed by plaintiff on
January 25, 2016, the pleadings, and other supporting documents. We limit the recitation to
facts germane to the certified questions presented for our consideration.
¶5 Vandalia Lions Club, Inc. (Vandalia Lions Club), and Vandalia have jointly organized the
annual community Halloween parade for more than 50 years. The parade typically draws more
than 2000 spectators each year, which causes traffic congestion near the parade route due to
road closures. There is a railroad crossing at the intersection of Sixth Street and Main Street
(Sixth Street Crossing), located one block from the parade route, which is approximately 70
feet from gate-to-gate and contains two sets of train tracks—the mainline and the spur.
¶6 For the limited purpose of assisting the reader in understanding the layout of the Sixth
Street Crossing, as described below, we take judicial notice of the following aerial photograph
from Google Maps. See People v. Clark, 406 Ill. App. 3d 622, 633-34 (2010) (holding that
maps from major online sites such as Google Maps are appropriate for judicial notice); see also
People v. Stiff, 391 Ill. App. 3d 494, 503-04 (2009) (taking sua sponte judicial notice on appeal
of the distance from one house to another using Google Maps).
1
Plaintiff filed the original complaint on May 29, 2015, in the circuit court of Madison County. The
matter was subsequently transferred to Fayette County. CSX Transportation, Inc., filed a third-party
complaint naming Vandalia as a defendant. On October 20, 2015, plaintiff filed the first amended
complaint adding Vandalia as a defendant. On January 25, 2016, plaintiff filed the second amended
complaint, which added Vandalia Lions Club, Inc., and the Vandalia Civic Advancement Association,
Inc., as defendants. The second amended complaint mirrored the first amended complaint but added
Vandalia as a “railroad defendant.” (For a list of the railroad defendants, see infra ¶ 10 n.2.) After filing
the second amended complaint, plaintiff settled with all defendants, except Vandalia and the Vandalia
Lions Club. On February 28, 2017, the circuit court dismissed with prejudice all counts against the
Vandalia Lions Club, Inc., which, in turn, rendered Vandalia the sole remaining defendant. On June 2,
2017, the court made an express written finding that there was no just reason for delaying an appeal of
the dismissal order pursuant to Illinois Supreme Court Rule 304 (eff. Mar. 8, 2016). Plaintiff did not
file an appeal.
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Google Maps, https://www.google.com/maps/@38.9619045,-89.0973731,109m/data=!3m1!1e3
(last visited Jan. 2, 2020) [https://perma.cc/28V8-6GAV].
¶7 Sixth Street runs north and south, and Main Street runs east and west parallel to the
mainline track. Going in a southernly direction, Sixth Street first crosses Main Street, then the
spur track and, finally, after several feet, crosses the mainline track. Both the northbound and
southbound approaches to the tracks are protected by crossing gates with flashing lights. A
section of the spur track runs diagonally through Main Street and continues through the Sixth
Street Crossing until the spur track reaches the mainline track east of the intersection. The
record indicates that CSX Transportation, Inc., owns the mainline track and Vandalia owns a
section of the spur track.
¶8 According to plaintiff’s second amended complaint, the Sixth Street Crossing has several
layers of asphalt patches that create a “steep incline or hump.” Due to distance and the
differences in road surface and elevation, the mainline track is less visible to southbound
traffic. As a result, when approaching the spur track, a southbound motorist may not recognize
that the mainline track is located within the same crossing. The complaint alleged that Vandalia
was aware that it was the most dangerous crossing in Vandalia’s city limits.
¶9 The second amended complaint also provides an alleged description of the events leading
to the underlying collision, which are summarized as follows. On the rainy night of October
30, 2014, Crystal Anna drove four of her children, Alyssa Sewell, A.W., Dr. W., and Dy. W.,
from Greenville, Illinois, to Vandalia for the Halloween parade. At 6:49 p.m., Crystal Anna
was approaching the Sixth Street Crossing on Sixth Street following a line of traffic to the
parade area. As she was crossing the spur track, the flow of traffic suddenly stopped, the
flashing lights activated, and the gates closed. Crystal Anna, unaware of an approaching train
on the mainline track, made a hurried attempt to drive her vehicle forward away from the spur
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track. However, she drove her vehicle onto the mainline track and was struck by an eastbound
freight train traveling approximately 46 miles per hour. The train collided with the passenger
side of Crystal Anna’s vehicle, instantly killing Alyssa Sewell, A.W., and Dr. W. Crystal Anna
and Dy. W., both seriously injured, were transported to local hospitals where Crystal Anna
died, leaving Dy. W. as the sole survivor of the collision.
¶ 10 The second amended complaint contains multiple negligence counts against Vandalia; the
Vandalia Lions Club; CSX Transportation, Inc., and its parent company, CSX Corporation
(collectively CSX); the Estate of Crystal Anna; Pioneer Railcorp, Inc.; Vandalia Railroad
Company, a subsidiary of Pioneer Railcorp, Inc.; Pioneer Railroad Services, Inc.; and the
Vandalia Civic Advancement Association, Inc. (Vandalia Civic Advancement Association).
As a general liability claim, plaintiff alleged that all defendants had a duty to exercise
reasonable care “to avoid injuring or killing members of the public.” Plaintiff also specifically
alleged in counts II, III, IV, V, and X that Vandalia, as a railroad defendant, 2 had breached
various statutory duties and proximately caused the deaths of Alyssa Sewell, A.W., Dr. W.,
and Crystal Anna and the serious injuries Dy. W. suffered. Additionally, in count VIII, plaintiff
specifically alleged that Vandalia, as a municipal corporation, performed or failed to perform,
through its employees and agents, negligent acts where it:
“a) created and allowed a temporary unsafe condition to exist on its property in the
form of traffic congestion at or around the subject crossing; b) failed to notify CSX
regarding the plans for the Halloween Parade; c) failed to prepare a master list of key
contacts including railroad officials; d) failed to have a written safety plan and
emergency response plan including notification of railroad and other entities; e) failed
to develop and communicate a congestion management plan; f) failed to involve the
Illinois Department of Transportation or Illinois Commerce Commission in planning
of the Halloween Parade or notify them of the parade; g) failed to identify one person
in charge of the parade and planning of the parade; h) failed to properly arrange for the
safe movement of traffic around the parade; i) failed to have a written plan for the
parade; j) failed to have an event planning office; k) failed to have a written plan at any
level for the parade; and l) preceded [sic] with the parade planning when it knew or
should have known the railroad should be or should have been contacted.”
Plaintiff alleged that “these actions or inactions” breached Vandalia’s duties and proximately
caused the deaths of Alyssa Sewell, A.W., and Dr. W. and the serious injuries Dy. W. suffered.
Lastly, in count IX, plaintiff claimed that Vandalia’s actions, as alleged in all of the previous
counts, constituted willful and wanton conduct, “thereby subjecting [Vandalia] to liability.”
¶ 11 On April 7, 2016, Vandalia filed a motion to dismiss the second amended complaint, along
with supporting memorandum. Vandalia did not designate whether its motion was pursuant to
section 2-615 and/or section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615,
2-619 (West 2016)). Vandalia asserted that it was immune from liability under various
provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Act)
(745 ILCS 10/1-101, 2-103, 2-104, 2-105, 2-201, 3-104, 4-102 (West 2016)) and that “there is
no legal duty owed by [Vandalia] to take any of the actions alleged by plaintiff.” Vandalia also
asserted that it had “no obligation to prevent a violation of the law” and that Crystal Anna
2
The railroad defendants are identified in the second amended complaint as CSX, Vandalia, and
the Vandalia Civic Advancement Association.
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violated the law by driving into the railroad crossing and stopping on the tracks before she
could safely cross the tracks. Lastly, Vandalia asserted that plaintiff’s claims, specifically
regarding the conditions of the railroad crossing, signal lights, and crossing gates, were barred
under Illinois law because the Illinois Commerce Commission (ICC) had exclusive jurisdiction
over “railroad crossing protection,” safety and regulation of railroad grade crossing.
¶ 12 On December 9, 2016, plaintiff filed a memorandum in opposition to Vandalia’s motion to
dismiss, and he attached several exhibits in support. The exhibits included a copy of the August
4, 2014, resolution; a video deposition of Vandalia’s police chief Jeffrey Ray, who testified
that the Sixth Street Crossing was the most dangerous crossing in Vandalia; an affidavit of
Brian Avery, an expert on risk and safety management; and materials related to the
management of special events.
¶ 13 Plaintiff first asserted that Vandalia, in filing a motion to dismiss under section 2-615
and/or section 2-619, admitted all well-pled facts in the second amended complaint. Plaintiff
argued that the well-pled facts included the following: (1) Vandalia was aware that the Sixth
Street Crossing was the most dangerous railroad crossing in Vandalia; (2) Vandalia knew that
traffic would be congested and that “street closures would funnel more traffic through that
[Sixth Street and Main Street] intersection”; (3) Vandalia was told by a member of the public
to notify CSX that the Sixth Street Crossing would be more congested the evening of the
parade; (4) Vandalia owned, operated, and maintained the spur track that ran diagonally
through the Sixth Street Crossing; and (5) Vandalia failed to move the railroad gates or take
remedial action to provide for the safe operation of trains after it discontinued use of the spur
track.
¶ 14 Based on these claimed facts, plaintiff contended that Vandalia had assumed a common
law duty of reasonable care to plaintiff by participating in the planning of the parade, which
included adopting a resolution “delineating its part in assuming the duty.” Plaintiff also argued
that Vandalia was not entitled to immunity under the Act because Vandalia’s (1) negligent
execution of its resolution to issue the parade permit was not protected and (2) acts were not
commonly recognized as part of police services performed pursuant to an enactment or
involved a failure to enforce a law. Plaintiff further asserted that Vandalia had failed to meet
its burden in proving that the allegations contained in the complaint were applicable to any of
the Act’s immunity provisions.
¶ 15 In support of Vandalia’s request for the Illinois Department of Transportation to
temporarily close portions of the state highway for the parade, the adopted resolution from
August 2014 identified a designated detour route through Vandalia following the proposed
temporary state highway closures. The resolution also stated, in pertinent part, the following:
“BE IT FURTHER RESOLVED, that the City of Vandalia assumes full
responsibility for the direction, protection, and regulation of the traffic during the time
the closure is in effect.
BE IT FURTHER RESOLVED, that Police Officers or authorized flaggers shall at
the expense of the City of Vandalia be positioned at each end of the closed section and
at other points (such as intersections) as may be necessary to assist in directing traffic
through the detour.”
¶ 16 After hearing argument on the motion to dismiss on February 10, 2017, and taking the
matter under advisement, the circuit court entered an order on February 28, 2017, denying the
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motion to dismiss.3 The court, citing Dockery v. Village of Steeleville, 200 Ill. App. 3d 926(1990), determined that section 4-102 of the Act (745 ILCS 10/4-102 (West 2016)) did not
grant Vandalia immunity because the second amended complaint alleged that Vandalia had
committed some affirmative acts, which included “directing plaintiff to an unsafe area to watch
the parade.” The court made no other additional findings related to the motion to dismiss.
¶ 17 On March 16, 2017, Vandalia filed a motion to clarify or, in the alternative, reconsider the
circuit court’s February 28, 2017, order denying its motion to dismiss. Vandalia requested that
the court address its other arguments raised in the motion to dismiss, including alternative
immunity provisions and that Vandalia did not owe a duty. Vandalia further requested that the
court, if it refused to modify its order, certify two questions pursuant to Illinois Supreme Court
Rule 308 (eff. July 1, 2017). In response, plaintiff argued that the court did not have a duty to
expand upon its ruling because the evidence supporting the motion to dismiss was insufficient
and that the certified questions were inappropriate “where there is no substantial ground for
difference of opinion.”
¶ 18 Following additional proceedings, the circuit court held a telephone conference with the
parties on October 2, 2017. Shortly thereafter, the court entered an interlocutory order pursuant
to Rule 308, certifying two questions (supra ¶ 1) for appellate consideration.
¶ 19 On December 4, 2017, this court denied Vandalia’s petition for leave to appeal pursuant to
Rule 308. Vandalia then filed a petition for leave to appeal to the Illinois Supreme Court. The
supreme court denied Vandalia’s petition but entered a supervisory order directing this court
to vacate its denial order, allow the application for leave to appeal, and address the two certified
questions. In accordance with the supreme court’s direction, we now issue this opinion
addressing the two certified questions.
¶ 20 II. ANALYSIS
¶ 21 Our review of this interlocutory appeal brought under Illinois Supreme Court Rule 308
(eff. July 1, 2017) is strictly limited to the two certified questions on appeal (Benton v. City of
Granite City, 2016 IL App (5th) 150241, ¶ 8), and the propriety of any particular circuit court
order is not reviewed under Rule 308 (Anthony v. City of Chicago, 382 Ill. App. 3d 983, 987
(2008)). However, a reviewing court may go beyond the scope of a certified question and
consider the appropriateness of the order giving rise to the appeal in the interests of judicial
economy and when the need to reach an equitable result so requires. Combs v. Schmidt, 2015
IL App (2d) 131053, ¶ 8. Moreover, “[a]lthough the scope of our review is generally limited
to the questions that are certified by the circuit court, if the questions so certified require
limitation in order to materially advance the ultimate termination of the litigation, such
limitation is proper.” Crawford County Oil, LLC v. Weger, 2014 IL App (5th) 130382, ¶ 11.
¶ 22 When ruling on a motion to dismiss under either section 2-615 or 2-619, which can be
raised simultaneously under the Code (735 ILCS 5/2-619.1 (West 2016)), it is proper for a
circuit court to accept as true all well-pled facts in the complaint and draw all reasonable
inferences from those facts in favor of the nonmoving party. Edelman, Combs & Latturner v.
Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003). However, a motion to dismiss does
not admit conclusions of law or unsupported factual allegations. Towne v. Town of Libertyville,
190 Ill. App. 3d 563, 566 (1989). In answering the certified questions, we assume that the
3
The common law record on appeal does not contain a transcript of the proceedings.
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undisputed factual statements and allegations of both parties are true and accurate. Ray v.
Beussink & Hickam, P.C., 2018 IL App (5th) 170274, ¶ 40.
¶ 23 When a defendant files a motion to dismiss pursuant to section 2-619, the defendant admits
the legal sufficiency of the complaint but asserts some affirmative matter that may defeat the
claim. Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District,
238 Ill. 2d 262, 267 (2010) (a claim filed after the applicable statute of limitations expired is
an example of an affirmative matter that can defeat a plaintiff’s claim); see also Van Meter v.
Darien Park District, 207 Ill. 2d 359, 367 (2003) (immunity granted by the Act is an
affirmative matter properly raised in a section 2-619 motion to dismiss). Unlike a filing under
section 2-615, which is based on defects in the pleading that render it insufficient in law (735
ILCS 5/2-615 (West 2016)), in a ruling on a section 2-619 motion, the circuit court considers
the pleadings, depositions, and affidavits. Doe v. Montessori School of Lake Forest, 287 Ill.
App. 3d 289, 296 (1997). When a court rules on a section 2-619 motion to dismiss, it “ ‘must
interpret all pleadings and supporting documents in the light most favorable to the nonmoving
party.’ ” Van Meter, 207 Ill. 2d at 367-68 (quoting In re Chicago Flood Litigation, 176 Ill. 2d
179, 189 (1997)). This court’s review of a dismissal under either section 2-615 or 2-619 is
de novo. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.
¶ 24 To succeed in an action for negligence, a plaintiff must establish that a defendant owed a
duty of care to plaintiff, defendant breached that duty, and plaintiff’s resulting injury was
proximately caused by the breach. Bonner v. City of Chicago, 334 Ill. App. 3d 481, 483 (2002).
Absent a legal duty of care owed to plaintiff, the defendant cannot be found negligent.
Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999) (unless a duty is owed, there is no
negligence and a plaintiff cannot recover “as a matter of law”). Once a duty has been
established, unless an immunity provision applies, a local public entity is liable in tort to the
same extent as a private party. Barnett v. Zion Park District, 171 Ill. 2d 378, 386 (1996).
¶ 25 The Act protects “local public entities and public employees from liability arising from the
operation of government.” 745 ILCS 10/1-101.1(a) (West 2016). The immunities established
in the Act are affirmative matters, and so governmental entities bear the burden of proving
their immunity under the Act. Van Meter, 207 Ill. 2d at 370. The Illinois Supreme Court has
indicated that the “ ‘logical sequence’ ” is for courts to determine the existence of a duty prior
to considering the affirmative defense of statutory immunity under the Act. Coleman v. East
Joliet Fire Protection District, 2016 IL 117952, ¶ 55. Therefore, we address the certified
questions in that order. Moreover, because plaintiff divided the claims against Vandalia into
two categories—municipal defendant and railroad defendant—we find it necessary to consider
the first certified question (immunity) relative to these distinctions.
¶ 26 A. Second Certified Question (Duty)
¶ 27 On appeal, plaintiff alleges that Vandalia had a duty to maintain its property, including the
Sixth Street Crossing, pursuant to section 3-102 of the Act (745 ILCS 10/3-102 (West 2016)).
Plaintiff further alleges that Vandalia owed a duty of reasonable care to those attending the
parade, “in part, as a railroad owner and the incident giving rise to this litigation occurred on
land which is owned by, and under the control of Vandalia at the time of the collision.” Lastly,
plaintiff alleges that Vandalia owed a duty to those attending the parade “once it voluntarily
undertook the responsibility and became actively involved in the planning, organization and
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carrying out of the parade” and in adopting the National Incident Management Systems
(NIMS) and in training its employees to follow NIMS procedures.
¶ 28 Conversely, Vandalia asserts that it does not own the railroad or a section of the spur track
within the Sixth Street Crossing. Even assuming ownership, Vandalia argues that plaintiff’s
claims are barred under Illinois law because the ICC has exclusive jurisdiction over “railroad
crossing protection,” safety, and regulation of railroad grade crossing. Lastly, Vandalia argues
that plaintiff’s allegation that it had a “voluntary undertaking of duty” was, first, not mentioned
in the second amended complaint and, second, devoid of any well-pled facts. We agree with
plaintiff that Vandalia, as the alleged property owner, had a duty to maintain the Sixth Street
Crossing in order to allow for safe crossing by the public.
¶ 29 “In a negligence action, the plaintiff must plead and prove the existence of a duty owed by
the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the
breach.” Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. “Whether a duty exists is a question
of law for the court to decide.” Id. ¶ 13. It is well settled that section 3-102(a) codifies the
common law duty of a local public entity to maintain its property in a reasonably safe
condition. See id. ¶ 15; Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78 (1995);
Wagner v. City of Chicago, 166 Ill. 2d 144, 150 (1995); West v. Kirkham, 147 Ill. 2d 1, 14
(1992); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412-15 (1991). Section 3-102(a)
of the Act provides as follows:
“[A] local public entity has the duty to exercise ordinary care to maintain its property
in a reasonably safe condition for the use in the exercise of ordinary care of people
whom the entity intended and permitted to use the property in a manner in which and
at such times as it was reasonably foreseeable that it would be used, and shall not be
liable for injury unless it is proven that it has actual or constructive notice of the
existence of such a condition that is not reasonably safe in reasonably adequate time
prior to an injury to have taken measures to remedy or protect against such condition.”
745 ILCS 10/3-102(a) (West 2016).
¶ 30 Here, it is undisputed that Crystal Anna and the occupants of her vehicle were permitted
and intended users of the Sixth Street Crossing while attempting to attend the parade. See
Washington, 188 Ill. 2d at 240 (“[F]or a public entity to owe a duty to protect a party from
unreasonably dangerous conditions existing on its property, that party must be both a permitted
and an intended user of the property.”). Moreover, according to the well-pled facts, Vandalia
had notice of the dangerous railroad track and street configuration at the Sixth Street Crossing,
which was “objectively obvious.” While it is true that Vandalia may ultimately succeed that it
did not own the railroad and spur track at the Sixth Street Crossing, this court must accept on
review that Vandalia had ownership interests, as alleged in the complaint, in answering the two
certified questions.
¶ 31 Vandalia also maintains that it did not have a duty to maintain the safety of the Sixth Street
Crossing because the safety of railroad crossings was within the ICC’s exclusive jurisdiction.
Specifically, Vandalia asserts that it is undisputed that the ICC had approved the configuration
of the Sixth Street Crossing in 1984. The facts necessary to sustain Vandalia’s alternative
defense, however, are not apparent on the face of the complaint and were not supported by
affidavit or other evidentiary materials of record. Here, the second amended complaint alleges
only that the ICC approved the removal of one track and the extension of the spur track.
Likewise, nothing in the record firmly establishes that the ICC had previously approved the
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configuration, and the circuit court made no such factual determination. Thus, the record is
insufficient for this court to find, as a matter of law, that the ICC had exclusive jurisdiction
over the safety of the Sixth Street Crossing.
¶ 32 Based on the foregoing, we find that Vandalia, as the alleged property owner, had a codified
duty to ensure that the Sixth Street Crossing was safe for the public, which included Crystal
Anna and the occupants of her vehicle. Accordingly, the second certified question (duty) is
answered in the affirmative.
¶ 33 B. First Certified Question (Immunity)
¶ 34 1. Railroad Defendant
¶ 35 Illinois courts have held that a defendant municipality may act in a dual capacity, one
proprietary and the other governmental. See Jones v. Village of Willow Springs, 240 Ill. App.
3d 235, 240 (1992). A municipality when acting in its governmental capacity may be
immunized under the Act (745 ILCS 10/1-101 et seq. (West 2016)) but not when acting in its
proprietary capacity for its own corporate benefit. Jones, 240 Ill. App. 3d at 239. Where the
municipality acts to accomplish a private purpose for its own corporate benefit, it is acting in
its proprietary capacity. Id. Thus, in determining the applicability of the immunity provisions
under the Act, we must first ascertain whether Vandalia was acting in a governmental or a
proprietary capacity.
¶ 36 If the ultimate disposition of a certified question is not strictly legal and includes factual
issues relevant to the legal question, the court should refrain from answering the certified
question. Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 21 (citing In re Estate of Luccio,
2012 IL App (1st) 121153, ¶ 32). Likewise, “[c]ertified questions must not seek an application
of law to the facts of a specific case.” Id. (citing De Bouse v. Bayer AG, 235 Ill. 2d 544, 557
(2009)). Rather, certified questions must involve a question of law for which there is
substantial ground for difference of opinion and for which an immediate appeal from the
interlocutory order may materially advance the ultimate termination of the litigation. See Ill.
S. Ct. R. 308(a) (eff. July 1, 2017); see also Rozsavolgyi, 2017 IL 121048, ¶ 31.
¶ 37 In light of these controlling principles, we are unable to answer the first certified question
(immunity) regarding the applicability of the Act to Vandalia as an alleged railroad defendant.
Specifically, the second amended complaint contains no well-pled factual allegations
regarding whether Vandalia was acting in a proprietary or governmental capacity, and the
circuit court made no such finding prior to denying Vandalia’s motion to dismiss. Nevertheless,
we will address the first certified question (immunity), in part, limited to Vandalia as a
municipal defendant.
¶ 38 2. Municipal Defendant
¶ 39 Even though we cannot answer the first certified question (immunity) as it relates to
Vandalia as a railroad defendant, we believe addressing this question, but limiting our answer
to the specified claims against Vandalia as a municipal defendant (i.e., counts VIII and IX),
will materially advance the ultimate termination of the litigation. See Crawford County Oil,
LLC, 2014 IL App (5th) 130382, ¶ 11 (“Although the scope of our review is generally limited
to the questions that are certified by the circuit court, if the questions so certified require
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limitation in order to materially advance the ultimate termination of the litigation, such
limitation is proper.”).
¶ 40 Because the Illinois Constitution of 1970 abolished sovereign immunity in Illinois, except
as the General Assembly may provide by law, the Act governs what circumstances local
government units are immune from civil liability. Harinek v. 161 North Clark Street Ltd.
Partnership, 181 Ill. 2d 335, 340 (1998). In construing the Act, we will not depart from the
plain language by reading into exceptions, limitations, or conditions that conflict with the
express legislative intent. Id. Because section 4-102 of the Act (745 ILCS 10/4-102 (West
2016)) provides for blanket immunity to local public entities under certain circumstances, we
consider the applicability of this section. Section 4-102 of the Act states:
“Neither a local public entity nor a public employee is liable for failure to establish a
police department or otherwise provide police protection service or, if police protection
service is provided, for failure to provide adequate police protection or service, failure
to prevent the commission of crimes, failure to detect or solve crimes, and failure to
identify or apprehend criminals. This immunity is not waived by a contract for private
security service, but cannot be transferred to any non-public entity or employee.” Id.Under the Act, a “ ‘[l]ocal public entity’ ” includes all local governmental bodies, including
municipalities and municipal corporations. Id. § 1-206.
¶ 41 Section 4-102 of the Act incorporates, as an immunity, the separate common law “public
duty rule” that municipalities or their employees are not liable for failure to supply police or
fire protection service. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 508-09 (2006) (“This
court’s comments in [Aikens v. Morris, 145 Ill. 2d 273 (1991),] suggest *** that the public
duty rule, at least in this context, has been incorporated into [the Act] as an ‘immunity.’ ”); see
also Aikens v. Morris, 145 Ill. 2d 273, 278 n.1 (1991) (“Under the rule, a police department’s
duty to preserve the well-being of the community is owed to the public at large, rather than
specific individuals.”).
¶ 42 Notably, however, the judicially created special duty doctrine was an exception to the
public duty rule that applied in certain limited instances where a governmental entity had
assumed a special relationship to an individual “so as to elevate that person’s status to
something more than just being a member of the public.” Schaffrath v. Village of Buffalo
Grove, 160 Ill. App. 3d 999, 1003 (1987). In order for a special duty to arise, as compared to
a duty owed to the general public, the following requirements must be present:
“ ‘(1) the municipality must be uniquely aware of the particular danger or risk to which
plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the
part of the municipality; (3) the specific acts or omissions must be either affirmative or
wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and
immediate control of employees or agents of the municipality.’ ” (Emphases added,
omitted, and in original.) Id. (quoting Curtis v. County of Cook, 109 Ill. App. 3d 400,
407 (1982)).
¶ 43 In the case sub judice, plaintiff contends that our decision in Dockery, 200 Ill. App. 3d 926,
is dispositive of this issue. Plaintiff argues that the Dockery decision carved out an exception
to section 4-102 of the Act for “affirmative acts.” In response, Vandalia argues that section 4-
102 of the Act does not contain any such exception. We agree with Vandalia.
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¶ 44 Dockery involved a plaintiff who was struck in the face by an aerial bomb while attending
a fireworks display in Steeleville, Illinois. Id. at 927. The plaintiff claimed that the Village of
Steeleville (Village) negligently failed to keep spectators at “ ‘a safe and proper distance from
the site where the fireworks were being discharged.’ ” Id. at 927-28. The plaintiff argued that
the Village voluntarily assumed crowd control and traffic management at an event held by a
private entity; thus, there was no immunity provided under section 4-102 of the Act. Id. at 928.
This court held that crowd control and traffic management at a Fourth of July celebration
constituted “ ‘police protection or service’ ” and, consequently, section 4-102 of the Act barred
the plaintiff’s claim that the Village had provided inadequate police protection by allowing
spectators into an unsafe area to watch fireworks. Id. at 929. In so ruling, this court stated:
“Plaintiff’s complaint does not allege that the Village committed some affirmative act
such as directing plaintiff to an unsafe area to watch the fireworks display. Instead, the
complaint alleges that the Village provided inadequate police protection to its citizens
in that it allowed them to watch, or failed to prevent them from watching, the fireworks
display from an unsafe area.” (Emphases added.) Id.
¶ 45 Citing this passage in Dockery, plaintiff asserted that Vandalia knew or should have known
that street closures would funnel more traffic through the Sixth Street Crossing at the time of
the parade. Thus, Vandalia’s actions constituted an affirmative act similar to the affirmative
act that was notably absent in Dockery. Here, after taking the motion to dismiss under
advisement, the circuit court found that Vandalia was not provided immunity under section 4-
102 of the Act because the second amended complaint alleged that Vandalia committed some
affirmative act, “such as directing plaintiff to an unsafe area to watch the parade.” We agree
with Vandalia that section 4-102 of the Act applies to the acts alleged in count VIII. While we
do not find support in the record for the circuit court’s factual finding that Vandalia performed
some affirmative act, “such as directing plaintiff to an unsafe area,” even if we were to assume
some affirmative act took place for the sake of argument, the court’s reliance on Dockery is
misplaced.
¶ 46 At the time of our Dockery decision, independent of statutory concepts, the general rule
was that a municipality or its employees may not be held liable for failure to supply general
police protection. See Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). However, courts had
long recognized a special duty exception to this general rule. Id.; Fessler v. R.E.J., Inc., 161
Ill. App. 3d 290, 295 (1987); Fryman v. JMK/Skewer, Inc., 137 Ill. App. 3d 611, 616 (1985);
Santy v. Bresee, 129 Ill. App. 3d 658, 662 (1984); Gardner v. Village of Chicago Ridge, 71 Ill.
App. 2d 373, 378-79 (1966), overruled by Harinek, 181 Ill. 2d 335. In the past, where a public
employee had exercised care or custody over an individual, the individual’s status was elevated
beyond that of a member of the general public, “the ‘special duty’ exception [was] activated
and the employee [was] liable for injury proximately caused by his negligence.” Anthony v.
City of Chicago, 168 Ill. App. 3d 733, 736 (1988).
¶ 47 In 1998, the special duty exception was eliminated when the Illinois Supreme Court,
overruling all previous holdings to the contrary, held that “the special duty doctrine may not
operate to impose liability upon a public entity after a court has found that entity immune from
liability under [the Act].” Harinek, 181 Ill. 2d at 347. Simply put, under Harinek, courts were
no longer authorized to make judicial exceptions to the Act that would permit the imposition
of liability by reading into it exceptions, limitations, or conditions. Id. at 340. Moreover,
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section 4-102 of the Act neither contains any exception for affirmative acts nor incorporates
the judicially created special duty exception.
¶ 48 In 2016, the Illinois Supreme Court abolished the public duty rule and its special duty
exception, observing that the public policy behind the judicially created public duty rule and
its special duty exception have largely been supplanted by the legislature’s enactment of
statutory immunities, thus rendering the public duty rule and its special duty exception
obsolete. See Coleman v. East Joliet Fire Protection District, 2016 IL 117952, ¶¶ 60-61.
Shortly thereafter, the Second District Appellate Court, in interpreting section 2-103 of the Act
(745 ILCS 10/2-103 (West 2014)), concluded that the abolishment of the judicially created
public duty rule did not impact the statutory codification of the rule as an immunity. Salvi v.
Village of Lake Zurich, 2016 IL App (2d) 150249, ¶ 41. Moreover, the Coleman decision has
been applied retroactively. Id.; see also Tzakis v. Berger Excavating Contractors, Inc., 2019
IL App (1st) 170859, ¶ 49 (circuit court’s decision to dismiss complaint based on the public
duty rule reversed on appeal because Coleman should have been applied retroactively).
¶ 49 Consequently, the Illinois Supreme Court, in effect, abrogated Dockery, at least to the
degree that it could be inferred that an affirmative act, such as directing a plaintiff to an unsafe
area, may create an exception to the grant of immunity under section 4-102 of the Act. See
Harinek, 181 Ill. 2d at 347; Coleman, 2016 IL 117952, ¶¶ 60-61; 745 ILCS 10/4-102 (West
2016). Thus, section 4-102 of the Act does not contain any exception for affirmative acts or
incorporate the abolished special duty exception. See 745 ILCS 10/4-102 (West 2016);
Coleman, 2016 IL 117952, ¶¶ 60-61.
¶ 50 Based on the foregoing, we hold that Vandalia, as a municipal defendant, is immune from
liability from the governmental acts alleged in count VIII, regardless of whether it performed
the affirmative acts complained of by plaintiff. Moreover, section 4-102 of the Act does not
contain an exception for willful and wanton misconduct. DeSmet, 219 Ill. 2d at 514-15.
Therefore, given the facts of this case, section 4-102 of the Act immunizes Vandalia against
claims of negligence (count VIII) and willful and wanton conduct (count IX) in implementing
crowd control and traffic management, a recognized “police protection or service,” at its annual
Halloween parade.
¶ 51 In summary, we first answered the second certified question (duty) in the affirmative based
on the well-pled facts contained in the second amended complaint, which alleged that Vandalia
is a railroad owner and the incident giving rise to this litigation occurred on land owned and
controlled by Vandalia at the time of the accident. However, the record is insufficient for this
court to address Vandalia’s alternative assertion that the ICC had exclusive jurisdiction
regarding the safety of the Sixth Street Crossing. As such, the first certified question
(immunity) is answered in the affirmative but limited to the claims against Vandalia acting in
its municipal capacity. As such, we reverse the circuit court’s order denying Vandalia’s motion
to dismiss, in part, and remand with directions for the court to dismiss counts VIII and IX.
¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, we answer the second certified question (duty) in the
affirmative, as it relates to Vandalia as a railroad defendant, based on the well-pled facts
contained in the second amended complaint. Additionally, we answer the first certified
question (immunity) in the affirmative but limited our answer to Vandalia acting in its
municipal capacity, as alleged in counts VIII and IX. Accordingly, the circuit court’s February
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28, 2017, order denying Vandalia’s motion to dismiss is reversed, in part, and we remand with
directions for the circuit court to dismiss counts VIII and IX.
¶ 54 Affirmed in part and reversed in part; cause remanded with directions.
¶ 55 Certified questions answered.
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