specially concurring:
I agree with the result reached by the majority in this "case, but I do not agree with the reasons given by the majority to reach that result. Specifically, I believe the majority has incorrectly construed the statute at issue in this case, section 5—201 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201), by engaging in an analysis that has been foreclosed by a decision of the Illinois Supreme Court. The defendant in this case argues that section 5—201, coupled with regulation 600.240 of the ICC (83 Ill. Adm. Code §600.240 (1985)), was intended to regulate water valve construction and maintenance to facilitate the use of those valves, rather than to protect the general public from faulty construction or maintenance. The majority opinion observes that if the defendant is correct, then plaintiff was not in a protected class. We know, however, that the defendant is not correct because of the decision of the Illinois Supreme Court in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929. Essentially the same argument presented to us by the defendant in this case was addressed to the supreme court in Churchill, and the court stated the following:
“Defendant initially seeks to dispose of the question by asserting that the statutory remedy in section 73 does not apply to personal injury actions. It contends that the Public Utilities Act is directed at regulating rates and services of public utilities, and that, consequently, section 73 is intended to provide a remedy for such abuses as overcharging and preferential rates and not for safety violations at railroad crossings. We fail to find any substantiation whatsoever for this contention.
*** We are impelled by the twin forces of statutory clarity and judicial precedent to conclude that personal injury actions, arising out of the violation of the ICG’s rules on public safety at railroad crossings, are cognizable under section 73 of the Public Utilities Act.” Churchill, 73 Ill. 2d at 136-37, 383 N.E.2d at 933.
As the majority opinion notes, the section 73 of the Public Utilities Act discussed in Churchill (Ill. Rev. Stat. 1969, ch. 111⅔, par. 77) is for all practical purposes identical to the section 5—201 that is at issue in this case. Accordingly, in view of the Churchill decision, I cannot agree with the lengthy analysis of the majority opinion leading to the conclusion that section 5—201, coupled with regulation 600.240, should be read to apply to the plaintiff under the facts of this case because “she is a member of the protected class.” 191 Ill. App. 3d at 750.
I further disagree with the majority’s opinion because, even if the Churchill case had not already resolved the primary issue before us, I conclude the determination of whether the plaintiff was part of a “protected class,” which the majority opinion addresses, is unnecessary based on my reading of the Illinois Supreme Court decision in Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323. The majority opinion, in analyzing Barthel, states the following:
“It was recognized that a violation of a statute to protect human life or property is prima facie evidence of negligence. (Barthel, 74 Ill. 2d at 219, 384 N.E.2d at 326.) However, it must
be shown that the violation proximately caused the injury, and that the statute was intended to protect a class to which the plaintiff belongs from the kind of injury suffered. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.) Section 5—201 differs from the ordinary statute because it expressly creates a cause of action. Thus, the violation establishes negligence as a matter of law, in contrast to the prima facie evidence rule.” 191 Ill. App. 3d at 747, 547 N.E.2d at 1378.
In Barthel, as in Churchill, the supreme court was construing section 73 of the Public Utilities Act. In doing so, the supreme court distinguished section 73 from the ordinary statutes designed to protect human life or property by pointing out that with regard to such statutes a plaintiff, in order to recover, must show that the violation proximately caused his injury and that the statute was intended to protect a class to which he belongs from the kind of injury that he suffered. The court distinguished section 73 in the following way:
“Section 73 of the Public Utilities Act, however, differs from the ordinary statute in that it expressly creates a cause of action. The provision declares unequivocally that a utility which violates the Act or implementing regulations shall be liable in damages for resulting injuries. *** We agree with plaintiffs that the statutory provision is incompatible with the ordinary rule that violation of a statute is merely prima facie evidence of negligence. We do not agree, however, that the statute imposes strict liability on public utilities.” Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326-27.
I read this language as indicating that a plaintiff must show that he belongs to a class and that he suffered from the kind of an injury that the statute at issue was intended to protect only when that statute is one of the ordinary statutes designed to protect human life or property; not when, as here, the statute itself expressly creates a cause of action. With regard to the ordinary statutes, their violation is only prima facie evidence of negligence, and the defendant may prevail by showing that he acted reasonably under the circumstances. A defendant charged with a violation of section 73 of the Public Utilities Act, now section 5—201 of that Act, may not prevail by showing that he acted reasonably under the circumstances.