# Lee v. Chicago Transit Authority

> Illinois Supreme Court · October 22, 1992 · 152 Ill. 2d 432

URL: https://www.frixlaw.com/law-library/cases/9737683

## Case

- **Full name:** JAE BOON LEE, Adm’x of the Estate of Sang Yeul Lee, Deceased, Appellant, v. THE CHICAGO TRANSIT AUTHORITY, Appellee
- **Court:** Illinois Supreme Court
- **Decided:** October 22, 1992
- **Citations:** 152 Ill. 2d 432; 178 Ill. Dec. 699; 605 N.E.2d 493; 1992 Ill. LEXIS 161
- **Precedential status:** Published
- **Opinion:** Dissent by Moran
- **Judges:** Freeman, Bilandic, Moran, Heiple
- **Cited by:** 390 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737683

## How later opinions describe it (automated extraction)

- holding that, even though the plaintiff "had other opportunities * * * to amend the pleadings," the trial court did not abuse its discretion in permitting amendment after trial began, because the opponent "was not prejudiced"
- holding that, even though the plaintiff “had other opportunities *** to amend the pleadings,” the circuit court did not abuse its discretion in permitting amendment, because the opponent “was not prejudiced”
- concluding that although cumulative, having the head of safety for the Chicago Transit Authority confirm a list of accidents was not unfairly prejudicial
- stating that the decision whether to grant leave to amend a pleading rests within the sound discretion of the trial court

## Opinion text

JUSTICE MORAN, dissenting:
The issue is whether the CTA owed a duty of ordinary care to the decedent Lee, who was a trespasser on its right-of-way. The majority adopts section 337 of the Restatement to impose that duty on the CTA. Because the knowledge requirement of section 337 has not been satisfied under the facts of this case, I respectfully dissent from the majority’s decision.
The rule in Illinois has long been that a landowner owes a trespasser only the duty to refrain from willfully or wantonly injuring him. (Marcovitz v. Hergenrether (1922), 302 Ill. 162, 167 .) A limited number of exceptions to the rule have been recognized over the years. Thus, if trespassers are discovered in a place of danger (Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 186 ) or if the landowner knows that trespassers have frequently intruded in a limited area (Bernier v. Illinois Central R.R. Co. (1921), 296 Ill. 464, 471 ), the landowner must exercise due care towards them. Similarly, if small children foreseeably intrude on the landowner’s property and are unable to appreciate the risk involved, the landowner must take due care to protect them from being injured due to a dangerous condition on the premises. Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625 .
With today’s decision, the majority has carved out yet another exception to the trespasser rule. In this case, the majority purports to follow section 337 of the Restatement, entitled “Artificial Conditions Highly Dangerous to Known Trespassers.” Section 337 provides:
“A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failing to exercise reasonable care to warn them of the condition if
(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and
(b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.” (Emphasis added.) Restatement (Second) of Torts §337, at 195 (1965).
The majority recognizes that, in order to establish a duty of ordinary care under section 337, the trespasser must first show that the landowner knew or had reason to know of the trespasser’s presence. Comment a to section 337 states that the rule “relates only to the conditions under which a possessor of land is subject to liability to a trespasser whom he knows to be about to come in contact with a highly dangerous artificial condition maintained by him upon the land.” (Emphasis added.) (Restatement (Second) of Torts §337, Comment a, at 195 (1965).) Thus, section 337, as explained by comment a, requires foreseeability in fact. If section 337 were correctly applied to the facts of this case, the CTA would clearly not be liable. The majority, however, refuses to accept comment a’s limitation of section 337 to instances where the landowner knows that the trespasser is about to come into contact with a dangerous condition on his premises. In this, it relies upon the reasoning of the only jurisdiction which has previously adopted section 337 without accepting the interpretation of comment a. (See Webster v. Culbertson (1988), 158 Ariz. 159 , 761 P.2d 1063 .) In my opinion, the Arizona case is inapplicable to the facts of the case at bar.
In Webster, the defendant had erected a barbed wire fence to keep trespassers from entering her property. The fence crossed over a wash in which footprints, tire tracks and hoofprints were plainly visible. The wash was visible from defendant’s house, and she visited the area approximately once a week. Evidence indicated that, at the time of the accident, the wash was used by pedestrians, children, motorcyclists, four-wheel drive vehicles, dunebuggies and equestrians for recreational purposes. Defendant’s fence was virtually invisible, and she had posted no signs to alert trespassers to its existence. The plaintiff was injured when he rode his horse into the fence. Adopting section 337, the Arizona Supreme Court rejected defendant’s argument that she had no knowledge or reason to know of the plaintiff’s presence, and reversed the trial court’s grant of summary judgment in her favor. The majority states that the Arizona court thus imposed a duty to warn on a person who maintains a dangerous artificial condition when the person is aware of the “possibility” that others will come into dangerous proximity of the condition. (152 Ill. 2d at 451.) However, the Webster court instead stated that section 337 is applicable when the defendant has “reason to know” of the presence of trespassers. Webster, 158 Ariz. at 163 , 761 P.2d at 1067 .
Moreover, the facts of the present case are markedly different from those in Webster, where there was ample recent evidence of the presence of many trespassers. Here, the CTA stipulated that it had notice of 10 prior accidents in the 3.2-mile right-of-way where its third rail runs at grade level. Thus, it could reasonably anticipate the intrusion of trespassers. However, the CTA had no actual knowledge or reason to know that trespassers had recently been within its right-of-way at the Kedzie/ Ravenswood crossing. Not only had there been no accidents along the entire 3.2-mile stretch of street-level third rail within the previous 15 months, but, more to the point, there was no physical evidence that intruders had recently entered the particular area where the accident occurred in 1977. Although a youth had fallen onto the third rail from a fence he was scaling at that location in 1974, there was no recorded incident of a pedestrian ever previously contacting the third rail after leaving the sidewalk at the Kedzie/Ravenswood crossing. I do not believe that the CTA’s knowledge of accidents taking place more than 15 months earlier and at other locations along the line is enough to satisfy comment a’s requirement that a landowner have reason to know that a trespasser is about to come into contact with the third rail. Further, even if comment a were not to apply, the facts of this case fail to satisfy section 337’s requirement that the CTA knew or had reason to know of the presence of trespassers at the Kedzie/Ravenswood crossing.
In a conclusory manner, the majority points to policy reasons — the likelihood of injury, the magnitude of guarding against the injury, and the consequences of placing that burden on the defendant — for its imposition of a duty of ordinary care on the CTA. However, the majority does not weigh the cost to the CTA — and the public — of putting into place and maintaining other safeguards. The CTA contends that measures such as swinging gates and catenary wires would impose a heavy financial burden, and that such measures have not proved effective in protecting the public. Consequently, the CTA placed signs warning "Danger,” "Keep Out” and “Electric Current” within several feet of the third rail at the Kedzie/ Ravenswood crossing. It also installed pointed boards on the ground to alert trespassers to the fact that they were walking where they ought not to be. That the CTA might have taken more extensive precautions to warn the public of danger goes to the question of whether it breached its duty of ordinary care, not to whether it had such a duty in the first place. See, e.g., Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 441 .
Because the presence of trespassers at the Kedzie-Ravenswood crossing was not foreseeable in fact, I do not believe that the CTA had a duty of ordinary care towards trespassers at that location. The jury found that the CTA’s conduct was not willful and wanton. Consequently, in my view the CTA was not liable for the injury to Lee. I believe that the majority’s decision to the contrary will go far towards making the CTA and any other landowner who can possibly anticipate the presence of trespassers in a dangerous area an absolute insurer of public safety.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737683. Public record. Not legal advice.