dissenting:
In my opinion my colleagues embrace the standing-train rule as a rather inflexible doctrine and have lost sight of basic tort principles, as expressed by our supreme court in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 151, 554 N.E.2d 223, 231-32, that must be applied to determine the existence of a duty even in instances where the defendant’s property seems to present an “open and obvious” risk. Ward makes it clear that the standing-train rule, like the “open and obvious” rule, is in essence a commonsense application of the tort principle that a defendant owes no duty to protect a plaintiff from “reasonable” risks. The danger posed by a train’s boxcar, tanker or caboose standing on a railroad crossing may be a “reasonable” risk because no reasonable person under ordinary conditions would collide with it. Ergo, the railroad is said to owe no duty to protect a motorist claiming injury from such a collision. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738.) Nevertheless, a duty may arise when conditions are altered, making the risk of collision “unreasonable.” Quoting comment ƒ to section 343A of the Restatement (Second) of Torts (1965), the Ward court stated:
“[r]eason to expect harm to visitors from known or obvious dangers may arise ‘where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. *** In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.’ ” Ward, 136 Ill. 2d at 149-50, quoting Restatement (Second) of Torts §343A, Comment ƒ, at 220 (1965).
In Ward, plaintiff sued for injuries which he alleged were caused by K mart’s failure to warn of the existence of a five-foot-tall concrete post located some 19 inches from the outside wall of the department store near its entrance. Plaintiff was carrying a large mirror when he left the store, walked into the post and sustained head injuries. A jury found for the plaintiff and awarded him $85,000 in dam-. ages, reduced to $65,000 for his own negligence. The trial court subsequently granted defendant’s motion for judgment n.o.v., and the appellate court affirmed, finding no duty on the part of the store owner.
In reversing the lower courts’ decisions, the supreme court emphasized that “since the existence of a duty turns in large part on public policy considerations, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden upon the defendant, as well as the likelihood of injury and the possible serious nature of such an injury must also be taken into account.” Ward, 136 Ill. 2d at 151, 554 N.E.2d at 232.
The Ward court acknowledged its earlier opinion in Dunn and cited it for the point that in determining whether a defendant’s premises present an unreasonable danger to invitees defendant need not anticipate the negligence of others. Contrary to the impression created by the majority here, the Dunn court did not hold that a railroad is automatically absolved of its general duty to exercise reasonable care for the protection of a motorist merely by parking its train on the tracks. Rather, the Dunn court recognized that even a standing train, under “special circumstances,” could present an unreasonable risk to motorists. The “special circumstances” alleged in Dunn consisted of: (1) darkness; (2) presence of vehicular traffic at the crossing; and (3) various violations of Illinois Commerce Commission rules for railroad crossings. The Dunn court provided its analysis of plaintiff’s allegations before concluding as a matter of law that such allegations, individually or combined, did not constitute “special circumstances.” I do not believe that my colleagues have done so.
Obviously there is no magic list of “special circumstances,” nor is there a magic number of them that must be established to survive a defendant’s motion for summary judgment. In this case, in addition to those six facts recited by the majority, the special circumstances that have been developed thus far in the proceedings include: (7) the distance across the tracks was such as to accommodate five sets of tracks from the southernmost edge where the cross arm was missing to the signals at the northernmost edge; (8) the empty flatcar was located on the north mainline and plaintiff’s decedent entered the crossing from the south; (9) plaintiff’s decedent was driving a van which would place his straight line of vision above that of most car drivers; and (10) it can be assumed that the flashing lights and bells were in continuous operation (at least on the north side) for at least 15 minutes immediately before the moving train entered the crossing.
According to the pleadings, affidavits and depositions of record, Kenneth Perkins, Sr., had entered the Linwood Road crossing from the north just as the warning signals were activated for an approaching train around 6:30 to 7 p.m. on December 13. He was operating a tractor-trailer rig with a 40-foot flatbed loaded with steel. Perkins was attempting to negotiate a left turn into a service road immediately south of the crossing when the southside cross arm began its descent. Perkins observed the arm strike the side of his trailer and break off. He did not report the incident.
Later, between 1:15 and 1:20 a.m., Russell Benjamin drove his van out of the tavern parking lot. The railroad crossing was only about one-half to three-quarters of a mile away. At 1:50 a.m. a train pulled to a stop on the north mainline. Sometime thereafter Russell drove his van into the side of a flatcar spanning the crossing. There were no witnesses to the collision between decedent’s van and that train. At 2:05 a.m., the engineer of a train travelling from the west at 70 miles per hour on the south mainline saw decedent’s van from a distance of about one-quarter of a mile. He could not brake in time to avoid hitting the van. The engineer of the stopped train observed that all warning signals on the north side were in place and operating when he crossed Linwood Road. The engineer of the moving train noted that all warning lights were operating on his approach.
Considering that decedent was familiar with the Linwood Road crossing, he knew that it was guarded by cross arms which descend gradually after the visual/audio signals are activated to warn of an approaching train. Yet, as decedent approached the crossing between 1:50 and 2:05 a.m. (the majority’s assertion that Russell was driving home from the tavern about 2 a.m. is an imprecise assumption by my view of the record), the physical barrier was not in place and the train on the south mainline would have been somewhere between 17 miles and one-quarter of a mile away.
It bears repeating that, in ruling on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the movant and most liberally in favor of the opponent and that the right to summary judgment must be clear beyond question. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 194, 380 N.E.2d 1040, 1044.) Given the proper standard and the facts as they appear of record, the following inferences support plaintiff’s case: (1) the night was dark; (2) the empty flatcar presented a low and unlighted profile (particularly given the heightened line of vision of a driver of a van); and (3) the unobstructed view of neon signs at the car dealership on the north side of the tracks could have given the impression that all of the tracks were still clear. With the scene thus set, the issue before this court is: Was the risk posed by the standing train so “reasonable” and the likelihood that a reasonable person exercising ordinary care would suffer an injury from a collision such as decedent’s so unforeseeable as to bar recovery as a matter of law? I think not. In hindsight it seems clear that if the railroad had placed reflective devices or stripes on its flatcar, this death may have been prevented.
On the other hand, it seems equally obvious that plaintiff’s decedent was not free from negligence. As the court in Ward so aptly put it, the duty plaintiff alleges
“does not impose on defendant the impossible burden of rendering its premises injury-proof. *** We merely recognize that there may be certain conditions which, although they may be loosely characterized as ‘known’ or ‘obvious’ ***, may not in themselves satisfy defendant’s duty of reasonable care. If the defendant may reasonably be expected to anticipate that even those *** in the general exercise of ordinary care will fail to avoid the risk because they are distracted or momentarily forgetful, then his duty may extend to the risk posed by the condition. Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact. The trier of fact may also consider whether the plaintiff[’s decedent] was in fact guilty of negligence contributing in whole or in part to his injury, and adjust the verdict accordingly.” Ward, 136 Ill. 2d at 156-57, 554 N.E.2d at 234.
Applying the public policy factor to the conditions here, it is debatable, in my opinion, whether a reasonable person would understand from the absence of the cross arm that he still had ample time to make the crossing before a train (that may not have been in sight) would reach it, despite the flashing lights and clanging bells on one or both sides of the crossing. According to decedent’s friend who accompanied Russell to the tavern parking lot, Russell drove off between 1:15 and 1:20 that morning. The friend said he arrived home around 1:30 a.m. Decedent’s whereabouts between 1:20 and 1:50 a.m. are not explained in the record. Also unexplained is decedent’s conduct between 1:50 a.m., when the westbound train pulled to a stop, and 2:05 a.m., when decedent’s van was first observed by the engineer of the eastbound train. From the manner in which decedent’s van was wedged under the flatcar, it can be assumed that decedent was traveling at some speed as he attempted to traverse the crossing approximately V2 hour after his friend got home. The evidence of some unspecified speed alone, however, does not justify an assumption that Russell did not in fact stop for several minutes in response to the warning signals before deciding to proceed across the tracks. Given the span of the five-track crossing, the reason Russell was driving at whatever speed he was just prior to impact is only subject to speculation. Nonetheless, the lack of any skid marks on the road supports plaintiff’s theory that Russell did not in fact see any obstruction on the crossing before proceeding into it.
Suffice it to say, in my opinion, sufficient facts have been set forth so as to present a genuine issue of material fact as to whether the railroad owed a duty for the protection of plaintiff’s deceased.
Further, I do not believe that the possibility of an injury was so unforeseeable as to relieve the truck driver defendant, Perkins, as a matter of law from owing a duty of reasonable care for the benefit of other motorists, including plaintiff’s decedent. The statute requiring motorists to promptly report property damage they have caused (Ill. Rev. Stat. 1989, ch. 95½, par. 11— 404) was enacted in part to protect subsequent motorists from the risk of collisions with obstructions lying on the road from the earlier accident. (See McCormick v. Kruk (1991), 220 Ill. App. 3d 449, 581 N.E.2d 73.) Again, in hindsight, it seems that if Perkins had reported the broken cross arm as required by law so that it could have been replaced promptly, a person familiar with the crossing traveling the road in the dead of night might not have been confused by its absence while an empty flatcar stood at the opposite side of the five-track crossing at a time when no eastbound train was in sight. As with the defendant railroad, I believe the question of whether Perkins owed a duty for the benefit of plaintiff’s decedent under these circumstances should be addressed to the trier of fact and not decided as a matter of law.
I would reverse the trial court’s judgment and remand this cause for trial.