The opinion
PRESIDING JUSTICE GREIMAN, dissenting:
The majority has construed the statute so narrowly that it is difficult to imagine why anyone sought its enactment. The majority states:
“The plain meaning of the statute is that a common carrier is immune from liability ‘for failure to provide a security or police force or, if a security or police force is provided *** [for] failure to prevent the commission of crimes by fellow passengers.’ (Emphasis added.) [Citation.]” 240 Ill. App. 3d at 789.
That might shed some light on the matter if those were the exact words and punctuation of the statute. Unfortunately, the majority has added the word “for” in the last line, connected it with the provision dealing with immunity for failure to provide a police force and eliminated a comma. 1
However, if we examine the full text of the statute, we find that “failure to prevent the commission of crimes by fellow passengers or other third persons” is an independent clause in a series of several independent clauses. This is somewhat obscured due to the missing comma.
In the paragraphs that then follow, the majority concludes that the statute does not afford the CTA immunity because “plaintiff alleges injury by a third party criminal in the absence of a security or police force.” (Emphasis in original.) (240 Ill. App. 3d at 789.) The majority apparently believes the immunity is operative only when the crime is committed in the presence of the security police. This court considered this issue in Cooper v. Chicago Transit Authority (1991), 224 Ill. App. 3d 321 , 586 N.E.2d 575 , where plaintiff entered a bus and was beaten for five minutes and then stabbed by a group of youths. We concluded that the plaintiff’s cause of action was within the scope of immunity provided by the statute. 2
I agree that Bilyk stands only for the proposition that creating different standards of liability between public and private transportation carriers does not violate equal protection clauses of the State or Federal constitutions. However, section 27, except in the area of third-party criminal actions, does not seek to diminish the high degree of care required to be furnished by a transportation carrier.
Also, the legislature did not intend to provide the CTA immunity in those situations where it is guilty of conscious indifference in its conduct towards a passenger just as local governments remain liable for their willful and wanton conduct.
The majority suggests that the “special duty” exception to immunity granted to municipalities applies here and obviates the provisions of section 27.
While I believe that such an exception is appropriate in certain limited cases, the exception cannot be broadened to emasculate the impact of section 27. Moreover, the plaintiff must show that his status as one to whom the special duty is due is more than merely a member of the general public.
If we recognize the “special duty” exception, then the four requisites imposed upon claimants against public bodies must be satisfied. Those elements are that (i) the defendant must be uniquely aware of the particular danger or risk to which plaintiff is exposed, 3 (ii) there must be allegations of specific acts or omissions on the part of the defendant, (iii) the specific acts or omissions must be either affirmative or willful in nature and (iv) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 , 565 N.E.2d 654 ; Doe v. Calumet City (1992), 240 Ill. App. 3d 911 .
There does not appear to be any allegation that the CTA or its agents had any awareness of the particular danger to which plaintiff was exposed. Plaintiff alleges in his complaint that the CTA was aware “that numerous attacks, as well as pickpocketing, had been committed upon its trains and platforms.” Such “awareness” addresses crime generally and does not meet the requirement that the CTA be aware of the “specific” act. To hold otherwise would impute specific knowledge of criminal acts to all municipalities since the mayors and managers of our cities are certainly aware of the crime statistics in our urban areas.
The plaintiffs complaint provides acts or omissions which might satisfy the second requirement of Burdinie; however, I question whether they are of such a character as to comply with the third prong of the test: that the acts complained of are affirmative or willful in nature. 4
Application of the fourth prong of the test requires a more thorough analysis. The requirement that the public employee exercise direct and immediate control of the plaintiff is founded in the sound public policy that mandates the individual’s status be elevated beyond that of a member of the general public before the “special duty” exception can impose liability upon the public body. Doe v. Calumet City (1992), 240 Ill. App. 3d 911 .
A “special duty” was determined where the municipality’s agent imposed “direct and immediate control” when plaintiff was in police custody to identify a suspect (Gardner v. Chicago Ridge (1966), 71 Ill. App. 2d 373 , 291 N.E.2d 147 ) or where an officer manning a roadblock, and knowing that a car was speeding toward them, ordered plaintiff to stop and pull to the roadside (Brooks v. Lundeen (1977), 49 Ill. App. 3d 1 , 364 N.E.2d 423 ) or where firefighters directed plaintiff assist them in closing an elevator door (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733 , 523 N.E.2d 22 ). On the other hand, no such “special duty” was found in Doe v. Calumet City (1992), 240 Ill. App. 3d 911 (police arrived at the victim’s apartment and failed to force immediate entry); Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505 , 475 N.E.2d 960 (police failed to respond to 911 call for 24 minutes during time which injury to plaintiff took place); Huey v. Town of Cicero (1968), 41 Ill. 2d 361 , 243 N.E.2d 214 (African-American beaten by four youths, en route to employment office located in Cicero); Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 , 565 N.E.2d 654 (plaintiff directed by swimming instructor to jump into pool).
Generally, the “special duty” exception has been narrowly construed. In Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172 , 446 N.E.2d 1183 , the court dismissed plaintiff’s complaint against the City of Chicago alleging he had been beaten by six young men on a CTA platform — where a city police officer, patrolling the station, directed plaintiff to go to the northbound subway platform because he believed the rowdies had gone to the southbound platform.
Plaintiff here came within the exception only if the “special duty” extends to every CTA patron — every person on CTA facilities. Such an interpretation would effectively repeal section 27.
“Neither the Authority [the CTA], the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 327.
Cooper was reversed on other grounds, the cause of action having accrued prior to the 1985 enactment of section 27, which is without retroactive effect. (Cooper, 224 Ill. App. 3d at 325 . See also Hopkinson v. Chicago Transit Authority (1991), 211 Ill. App. 3d 825 , 570 N.E.2d 716 .) Although this cause of action also accrued before the enactment of section 27, its facts might meet the criteria of a “special duty”: opaque panels shielding a deserted end of a platform at a station which was the site of numerous criminal assaults. Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84 , 568 N.E.2d 18 .
Even before section 27 was enacted, the uniqueness of the danger was not always clear. (See Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997 , 376 N.E.2d 680 (past robberies at a particular station imposed a duty of vigilance on CTA to plaintiff who was robbed at 3 a.m.); Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366 , 50 N.E.2d 497 (defendant liable where station was located near a “hobo jungle”).) Even Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493 , 470 N.E.2d 1163 , might provide that unique danger to avoid the effect of section 27 since the plaintiff was attacked in an enclosed engineer’s compartment which was left unlocked during late night hours when train cars were often deserted.
Although generally a question of fact for the jury, courts have determined that there must be a period of time after appreciation of the danger within which the CTA employee has an opportunity to act to avert injury to the plaintiff. McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280 , 371 N.E.2d 625 ; Watson v. Chicago Transit Authority (1972), 52 Ill. 2d 503 , 288 N.E.2d 476 ; Letsos v. Chicago Transit Authority (1970), 47 Ill. 2d 437 , 265 N.E.2d 650 .