Torts Evening- Fall 2007
Professor Ralph Brill
Supplemental Material
Supplemental Material


No. 7 1 3 0 4





JAE BOON LEE, Administratrix of the

Estate of SANG YEUL LEE, Deceased,






Appeal from the Appellate Court of Illinois, First District,

No. 88-88. There Heard On Appeal From The Circuit Court

Of Cook County, Illinois, County Department, Law Division.

The Honorable James E. Sullivan, Judge Presiding.







The Illinois Trial Lawyers' Association is an organization dedicated, inter alia, to serving and protecting the interests of victims of tortious acts. The opinion of the Illinois Appellate Court, First District, is a substantial curtailment of the rights of one class of tort victims -- i.e., victims of the CTA's enormously dangerous operation of an unguarded and unprotected third rail system to power its trains at ground level intersections, within foreseeable access by pedestrians passing on the public sidewalk 6 1/2 feet away.

In addition, this Court has granted Leave to Appeal in this case at least in part to consider whether the common law distinctions on a landowner's duties to trespassers ought to be abolished. The Illinois Trial Lawyers' Association offers its argument in support of such abolition.


1. Whether this Court should join the recent trend by leading jurisdictions to abolish the artificial common law distinction granting landowners virtual immunity for injuries to trespassers on their land, and to substitute the traditional standard, applied in virtually every other situation, of ordinary, reasonable care under the circumstances.

2. Whether the Appellate Court erred in ruling that the defendant CTA's use of the highly dangerous third rail system to power its trains was merely a passive condition on the land, and not a dangerous activity.

3. Whether the artificial distinction between artificial conditions on the land and the landowner's activities should be abolished.




[In its brief, ITLA adopted the Statement of facts from Plaintiff-Appellant's brief, supplemented by references to the record within the Argument itself. Because the Statement of Facts is very long, the following summary is taken from the opinion of the Illinois Appellate Court, Lee v. Chicago Transit Authority, 205 Ill. App. 3d 163, 562 N.E.2d 556 (1st Dist. 1990)(opinion by Justice McNamara):

Plaintiff, Jae Boon Lee, administratif of the estate of Sang Yeul Lee, brought a wrongful death action to recover damages for the death of her husband which occurred while he was on land owned by defendant, Chicago Transit Authority. Plaintiff's complaint alleged that the CTA's conduct in maintaining its third rail was either negligent or wilful and wanton, and caused decedent's death. The jury returned a verdict for plaintiff on the negligence count in the amount of $3,000,000, but reduced its award by 50 percent based on the decedent's own negligence. In response to a special interrogatory, the jury found that the CTA's conduct was not wilful and wanton. The CTA appeals from that judgment, contending that the trial court erred in denying it motions for directed verdict and for judgment notwithstanding the verdict . . . .
. . . .
At trial, the following information was adduced. Plaintiff testified that she and the decedent immigrated to the United States from a rural area outside Seoul, Korea. They had two sons, Chong Yoon Lee and Jae Lee. At the time of his death, the decedent was employed at Thayer & Chandler, a manufacturer of air brushes. The decedent had a limited understanding of English, but was able to get to and from work by riding the Ravenswood "L".

On October 21, 1977, the morning preceding the accident, the decedent informed plaintiff that he planned to attend a party in the evening. Decedent apparently left the party after dark. He proceeded up Kedzie Avenue, a north/south street which intersected with the northwest-bound Ravenswood rapid transit line. At this point, he apparently proceeded into the CTA's right-of-way in order to urinate. In the process of doing so, he came into contact with the third rail, and suffered fatal injuries.

The decedent's body was found on the elevated ("L") tracks located on the CTA's Ravenswood line at or near 4700 North Kedzie Avenue. John Costantini, a Chicago Fire Department paramedic field officer, testified that the decedent lay perpendicular to the northwest-bound CTA tracks, his head pointing north. The decedent's feet were near the third rail, pointing in its direction. (The third rail carries 600 volts of electricity and provides power to the train cars as they traverse grade crossings). The decedent's pants zipper was open, and his penis was exposed. The pathology report listed the immediate cause of death as electrocution. At the time of his death, the decedent had a 0.341 percent blood alcohol concentration which placed him in the stupor classification of intoxication.

Thomas Wolgemuth, the CTA's Director of Plant Maintenance and later its Manager of Engineering, testified that the decedent was neither permitted nor invited to be on the Kedzie "L" tracks on October 22, 1977. (Plaintiff introduced no evidence that the presence of decedent inside the Kedzie right-of-way was known to the CTA) In order to prevent pedestrians from entering the right-of-way at grade crossings such as the one at Kedzie, the CTA developed a "pedestrian access barrier system." This system was in place in July 1976, and consisted of warning signs, right-of-way fencing, access barriers and chain link fences, and trespass barriers, also known as "jaws."

Prior to installing the "jaws" trespass barrier system, the CTA considered three alternative protective systems: gates which would remain closed except when a train was traveling through the crossing, cover boards which would cover the third rail, and catenary lines which would carry the electric current overhead.

Charles Heilman, a safety expert, testified for plaintiff that each of the above systems would have been preferable to the system employed by the CTA. Heilman concluded that the "jaws" were intrinsically unsafe and that the warning signs were insufficient. Heilman gave detailed reasons for his conclusions, but because of our view of the proceedings, it is not necessary to set forth his reasoning.

Plaintiff introduced evidence of ten prior accidents involving injuries caused by the third rail at CTA grade level crossings. Of those, one occurred at the Ravenswood crossing at Kedzie in 1974. The ten accidents spanned the period from 1948 through 1975. None of the accidents occurred after the CTA placed its "jaws" trespass barrier system at grade level crossings on the Ravenswood line.

Following the presentation of all testimony, the parties tendered instructions to the court. Plaintiff tendered an instruction based on her theory that the CTA was engaged in the activity of conducting electricity. The CTA objected to plaintiff's instruction and tendered its own instruction based on the position that the third rail was a condition, not an activity. The court found that the CTA was engaged in the activity of conducting electricity, and gave the jury plaintiff's instruction charging the CTA with the duty of ordinary care. The court refused to give the CTA's instruction.

Following deliberations, the jury returned a verdict in the sum of $3,000,000 which it reduced by 50% to account for the plaintiff's own negligence. The CTA's motion for directed verdict as well as its motion for judgment notwithstanding the verdict were denied.]

The Appellate Court, First District, reversed. It ruled that the ordinary duty to trespassers was to refrain from wilful and wanton misconduct, and the jury had specifically found none in this case. None of the exceptions were applicable -- i.e., young children injured by a dangerous agency, trespassers using permissive paths, or discovered trespassers.

The Court also found that the CTA's third rail system was a passive condition and not an activity, so as not to fall within the exception embodied in Restatement (Second) of Torts, section 334:

"A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.

This exception has been incorporated into Illinois Pattern Jury Instructions, Civil, 120.03. The Court relied on Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85 (1922)(elevator shaft was a condition); Votava v. Material Service Corp., 74 Ill. App. 3d 208, 392 N.E.2d 768 (1979)(submerged barge a condition); and Phillips v. J.F. Martin Cartage Co., 42 Ill. App. 3d 890, 356 N.E.2d 1237 (1976)(refuse container a condition); and distinguished Shine v. Wabash Ry. Co., 8 Ill. App. 2d 521. 132 N.E.2d 41 (1956)(operating train an activity); and McDaniels v. Terminal R.R. Co., 302 Ill. App. 332, 23 N.E.2d 785 (1939)(lumber thrown by employees an activity).

Finally, the Court held that the CTA was not in the business of distributing electricity, despite owning and using transformers, and was not in the same position as a utility simply because it redistributed electricity.





A. The Justifications Given For The Traditional Limitations On Landowners' Duties To Trespassers Are Based On A Feudal Heritage Overemphasizing The Importance Of Land, And On Harsh Beliefs That Trespassers Are Unworthy Of The Law's Protection.

Primogeniture has long ago been abolished. The doctrines of Worthier Title and the Rule in Shelly's Case have faded into history. No longer does a landowner own upward to the heavens and downward to the center of the earth; aircraft may fly overhead without trespassing, and utilities may gain easements for their wires and pipes. The rule of caveat emptor has been tempered or abolished; in fact, sellers now impliedly warrant the habitability of the property they sell. And landlords no longer are free to avoid responsibility for protecting their tenants from harm. (1)

These and other ancient doctrines derived from our English heritage have been altered or replaced out of recognition of their purely feudal origins, and their inconsistency with modern life, mores, practices and problems.

However, one major vestige of these bygone times has remained, at least in theory, -- the limitation on the landowner's duty to trespassers on the land. "At a time when landowners were a dominant class and ownership of land was considered akin to a sacred right, the fact that the plaintiff was a trespasser was of the utmost importance. This attitude was reflected in the law which, in its practical application, valued the rights and privileges of ownership 'over the lives and limbs of trespassers.'" Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794, 796 (1976)(quoting 1 Harper & James, Torts, p. 1438; Hughes, Duties to Trespassers, 68 Yale L.J. 633, 656-7 (1959)). (2)

To be sure, as the general theory of tort liability developed in response to a heightened awareness of the value of human life, new justifications have been offered for the landowner's immunity from liability to trespassers. However, we submit, none of these are complete or satisfactory bases for the categorical rule that a landowner owes no duty to protect a trespasser from serious harm.

Thus, it is argued that trespassers are not foreseeable; that trespassers assume the risk of dangers on another's land; that trespassers are themselves wrongdoers and contributorily negligent as a matter of law; or that social policy demands that a landowner be able to enjoy his/her land without the undue burdens of altering the condition of the land or activities on the land. See Miller v. General Motors Corp., 207 Ill. App. 3d 148, 565 N.E.2d 687 (4th Dist. 1990)(Appendix L, Brief of Plaintiff-Appellant); 5 Harper, James & Gray, The Law of Torts, sec. 27.3 (2d ed. 1986)(Appendix M, Brief of Plaintiff-Appellant); Prosser, Torts 434 (2d ed.).

But these generalities surely are not true in every case, and can not justify the blanket rule of landowner's immunity. Thus, in many specific cases, there is no question that trespasses frequently have occurred, and therefore are foreseeable to the owner. Furthermore, to say that a trespasser assumed the risk of injury would require that he/she knew of the exact risk and voluntarily faced it; often, the facts are uncontroverted that the trespasser was unaware of the danger present on the defendant's premises. Are trespassers automatically wrongdoers? Very few who sue for damages are housebreakers; most are innocent parties who stray or take short cuts across open property, with no malevolent intent. And even if a trespasser's conduct could be said to be wrongful in some general sense, modern concepts of comparative fault teach us that such behavior should not automatically bar recovery against one guilty of a greater wrong. Finally, as for the burdens on the owner, very few suits are likely to be brought against homeowners who were mowing their lawns, or sunning themselves by a pool, when the plaintiff was injured; defendants usually are major businesses, operating highly dangerous instrumentalities, and who are able to afford mechanisms to make the premises safer.

As the New York Court of Appeals cogently said:

"All of the above hypotheses obviously have some probative value. But the facts in a particular case might show that trespassers were foreseeable or even foreseen; that the injury could have been prevented by a minimal effort on the part of the landowner; and that there was no basis for finding that the trespasser proceeded in the face of a known danger or was guilty of contributory negligence. To say that the hypothetical factors are always present and thus entitled to conclusive effect in all cases is the purest legal fiction . . . ." Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794, 797 (1976).

See also, 5 Harper, James & Gray, sec. 27.3 (2d ed. 1986)(Appendix M); Hughes, Duties to Trespassers: A Comparative Survey and Reevaluation, 68 Yale L.J. 633, 686 et seq. (1959)(Appendix K, Plaintiff-Appellant's Brief).

The harshness of the common law rules, and the resultant severe results, have led the courts to create a number of exceptions to the no duty to trespassers rule. Thus, courts have subdivided trespassers into discovered and undiscovered, tolerated intruders, frequent trespassers in a limited area, and those foreseeable in a place of danger; defendants are distinguished as to whether they are owners, occupiers, or nonowners; distinctions have been made between an owner's liability for activities or operations, or based on active or passive negligence; and some courts have made owners liable for willful and wanton conduct based on a liberalized definition of to include failure to use ordinary care where a trespasser is discovered or foreseeable. See general discussions in Miller v. Commonwealth Edison, 207 Ill. App. 3d 148, 565 N.E.2d 687 (4th Dist. 1990); Scurti v. City of New York, supra.

These attempts at doing justice have instead created a maze of complex and confusing doctrine, unevenly and therefore unfairly applied. In the words of Justice Stewart of the United States Supreme Court:

"In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards 'imposing on owners and occupiers a single duty of reasonable care in all circumstances.'" Kermarec v. Transatlantique, 358 U.S. 625, 630-31, 79 S. Ct. 406, 410 (1959). (3)

This Court itself repeatedly has noted the confusion and complexity created by the law relating to trespassers, licensees and invitees. In a series of Annual Reports to the Illinois Legislature, the Court has stated:

"The long-standing rule in Illinois is that the application of the categories of trespasser, licensee and invitee determines the liability of a landowner for injuries to persons who have entered upon the land. This rule derives from the English common law which accorded special privileges and immunities to the occupier of land because of the social and economic importance that land ownership held in England . . . . These distinctions given to entrants upon land are grounded in feudalistic notions of the importance of land ownership and have caused confusion and complexity when applied by courts to our modern industrial society." (The Common Law Distinctions Among Entrants Upon Land To Determine The Degree Of Care Owed Them By The Occupier Of The Premises Should Be Studied, Annual Report to the Legislature p. 27 (1982), Appendix J, Plaintiff-Appellant's Brief).(emphasis added).

In recent years, approximately ten leading jurisdictions have recognized that the common law distinctions are no longer justified. They have substituted the rule that an owner or occupier of land owes each entrant a duty of ordinary, reasonable care under the circumstances. See Webb v. Sitka, 561 P.2d 731 (Alaska 1977); Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561 (1968); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); Smith v. Arbaugh Restaurant, 152 App. D.C. 86, 469 F.2d 97 (1972), cert. den. 412 U.S. 939 (1972); Pickard v. Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969); Cates v. Beuregard Electric Co-Op, Inc., 328 So. 2d 367 (La. 1976), cert. den. 429 U.S. 833 (1976); Berge v. Boyne USA, Inc., 779 F.2d 1445 (9th Cir. 1986); Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976); Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868 (1976); Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975); See Annot., Modern Status Of Rules Conditioning Landowner's Liability Upon Status Of Injured Party As Invitee, Licensee, Or Trespasser, 22 A.L.R.4th 294 and 1991 Supp.

The case which has lead the way in revamping the law of owner's liability to entrants on the land is Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561 (1968). The court stressed that the most basic common law rule has been that all persons are required to use ordinary care to prevent others from being injured as a result of their conduct. Ordinarily, for a court to justify making an exception from this general precept requires it to balance a number of important considerations, the major ones being the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff actually suffered injury, the closeness of the connection between defendant's conduct and the injury, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to defendant and the consequences to the community of imposing a duty to exercise care, and the availability, cost and prevalence of insurance for the risk involved.

Applying these factors to the exception granted landowners for liability to entrants on the land, the court concluded that few, if any, of these factors were borne out so as to justify the landowner's exception. The court said:

"Some of those factors, including the closeness of the connection between the injury and the defendant's conduct, the moral blame attached to the defendant's conduct, the policy of preventing future harm, and the prevalence and availability of insurance, bear little, if any, relationship to the classifications of trespasser, licensee and invitee and the existing rules conferring immunity."

"Although in general there may be a relationship between the remaining factors and the classifications of trespasser, licensee, and invitee, there are many cases in which no such relationship may exist. Thus, although the foreseeability of harm to an invitee would ordinarily seem greater than the foreseeability of harm to a trespasser, in a particular case the opposite may be true. The same may be said of the issue of certainty of injury. The burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach may often be greater with respect to invitees, but it by no means follows that this is true in every case. In many situations, the burden will be the same, i.e., the conduct necessary upon the defendant's part to meet the burden of exercising due care as to invitees will also meet his burden with respect to licensees and trespassers. The last of the major factors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted, but there is no persuasive evidence that applying ordinary principles of negligence law to the land occupier's liability will materially reduce the prevalence of insurance due to increased cost or even substantially increase the cost." 443 P.2d at 567-68. (4)

The court concluded that continued adherence to the common law distinctions can only lead to injustice, or, in the courts' attempts to avoid injustice, to further fictions, with resulting complexity and confusion. Justice Peters forcefully stated:

"A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty." 443 P.2d at 568.

In Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972), Chief Judge Bazelon eloquently added to the reasons for overthrowing the common law categories:

"It is the genius of the common law that it recognizes changes in our social, economic, and moral life. Legal classifications such as trespasser and licensee are judicial creations which should be cast aside when they are no longer useful as controlling tools for the jury. The principle of stare decisis was not meant to keep a strangle-hold on developments which are responsive to new values, experiences, and circumstances. In our opinion, the time has come to put an end to our total reliance on these common law labels and to allow the finder of fact to focus on whether the landowner has exercised "reasonable care under all the circumstances." That standard contains the flexibility necessary to allow the jury to take account of the infinite variety of fact situations which affect the foreseeability of presence and injury, and the balance of values which determines the allocation of the costs and risks of human injury." 460 F.2d at 105.

Thus, we respectfully urge this Court to abolish the no longer viable immunity of landowners to trespassers.

Defendants may argue that it is not for this Court to change the law distinguishing between invitees, licensees and trespassers, especially since the Legislature recently has abolished the distinctions between invitees and licensees.

As to the first argument, we urge the Court to consider the words of Justice Kelleher in Mariorenzi v. Joseph DiPonte, Inc., 333 A.2d 127, 133 (R.I. 1975):

"The time has come to extricate ourselves from a semantical quagmire that had its beginning in ancient and misleading phraseology. Mr. Justice Sutherland has emphasized the judiciary's duty to bring the common law into accord with present day standards of wisdom and justice rather than to continue with some outmoded and antiquated rule of the past. Funk v. United States, 290 U.s. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). The judiciary gave birth to the invitee, licensee, trespasser trio and the judiciary can lay this triptych to rest. Accordingly, we now give a final but fitting interment to the common law categories of invitee, licensee, and trespasser, as well as their extensions, exceptions, and extrapolations."

The rule limiting liability to trespassers was a judicial creation. This Court itself has emphasized that where it is clear that the court has made a mistake, it will not decline to correct it, even though the rule may have been re-asserted and acquiesced in for a long number of years. Neff v. George, 364 Ill. 306, 4 N.E.2d 388 (1936). No person or entity has a vested right in any rule of law entitling that person or entity to insist that it shall remain unchanged for their benefit. Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124 (1952).

As to the argument that the legislature already has partially abrogated the common law distinctions, we offer the teachings of the court in Ouellette v. Blanchard, 364 A.2d 631, 634 (N.H. 1976). In response to the argument that the court should limit the change in the common law categories to invitees and licensees, the court said:

"We are not disposed to limit our holding to abolishment of two-thirds of the trichotomy and to retain the category of trespassers as a legal area of immunity. Justice Kaplan in his concurring opinion in Mounsey v. Ellard, 297 N.E.2d 43, 57 (Mass. 1973), noted: "[I]t is sometimes just as hard to distinguish trespassers from licensees or invitees, as to distinguish licensees from invitees; and the class of trespassers is probably just as various as either of the other classes. The very effort at dry classification and differentiation puts the emphasis at the wrong places." Justice Kaplan also noted the unsatisfactory condition of the English law as to trespassers after they were excluded from the Occupiers' Liability Act."

"Our own cases previously reviewed indicate the correctness of Justice Kaplan's concurring opinion and that to retain trespassers as a separate category will continue the difficulties inherent in separating licensees from trespassers and "good trespassers" from "bad trespassers."

In Maki v. Frelk, 40 Ill. 2d 193, 239 N.E.2d 445 (1968), the Court held back on changing or abolishing the court-created doctrine of contributory negligence, and urged the legislature to take the lead. In the intervening years, 6 bills were introduced in the General Assembly to abolish the doctrine; all were defeated. The legislature also enacted or reenacted provisions on contributory negligence in several statutes. E.g., Ill. Rev. Stat. ch. 127 1/2, par. 46; Ill. Rev. Stat. ch. 34, sec. 301.1. Nevertheless, in Alvis v. Ribar, 85 Ill. 2d 1, 421 N.e.2d 886 (1981), the Court rejected the argument that the legislature's actions and inactions prevented the Court from changing the common law to conform to the changing demands of the community, by substituting the doctrine of comparative negligence.

We urge the Court to follow the policy exhibited in Alvis. Where the legislature has, for whatever reason, failed to completely act to remedy a gap in the common law that results in injustice, it is imperative that the Court repair that injustice and reform the law to meet the just demands of society.

B. A Rule Holding A Landowner To A Duty To Conform To A Standard Of Ordinary, Reasonable Care Under The Circumstances Is More In Accordance With Modern Mores And Values; Such A Rule Would Not Open The Doors To A Flood Of Litigation Nor Impose Unreasonable Burdens On Landowners.

The standard being urged upon this Court is the traditional one for all other forms of negligence: A landowner must act as a reasonable person in maintaining the owner's property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Cf. Lance v. Senior, 36 Ill. 2d 516, 224 N.E.2d 231 (1967).

Adopting the standard of ordinary and reasonable care under the circumstances will not open a door to a flood of litigation and widespread liability. Nor will adoption of the ordinary standard make the owner an insurer of his property, or require him to endure unreasonable burdens to maintain the property. Webb v. Sitka, 561 P.2d 731 (Alaska 1977). It will simply mean that while a person's status on the land as invited or uninvited may have great bearing on the question of liability, it will only be a factor -- not conclusive. Mile High Fence v. Radovich, 489 P.2d 308, 314-15 (1971). (5)

Thus, the fact that a plaintiff entered without permission will be a relevant factor. Mariorenzi v. Joseph DiPonte, Inc., 333 A.2d 127, 133 (R.I. 1975). It may well demonstrate that a plaintiff's presence was not foreseeable at the time and place of the injury. See Cunis v. Brennan, 56 Ill. 2d 372, 308 N.E.2d 617 (1974). However, the likelihood of one entering without permission depends on the facts of the case, including the location of the property in relation to populated areas, its accessibility, and whether there have been any prior incidents of trespassing in the area. See Scurti v. City of New York, 354 N.E.2d 794, 798 (N.Y. 1976). Juries are apt to treat quite differently a plaintiff injured after climbing a fence into a homeowner's back yard from one injured while walking a few feet off of a public sidewalk onto an open lot. (6)

Similarly, the fact that the injury occurred on the defendant's property is certainly a relevant circumstance in assessing the reasonableness of the defendant's conduct. The owner has the right to use and develop property for profit and enjoyment. Often, this means that the owner must conduct dangerous activities or permit dangerous instruments or conditions to exist on the premises. However, the fact of danger alone will not create liability; all that is required is that the defendant exercise reasonable care under the circumstances, and the defendant can always show that it would have been unduly burdensome to have done more than it did. Scurti v. City of New York, 354 N.E.2d at 798.

C. Under A Standard Of Ordinary, Reasonable Care Under The Circumstances, The Jury Had Ample Basis To Find The CTA Liable.

As applied to the facts of the present case, the jury's verdict was amply supported.

1. There was an abundance of evidence demonstrating the likelihood of injury to plaintiff.

The jury may determine the likelihood of injury from such factors as the property's relationship to populated areas, its accessibility, and prior similar accidents. See Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794, 798 (1976); cf. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 531 N.E.2d 1358 (1988)(prior incidents). In the present case, the defendant has conceded that it was foreseeable people would walk into the track area from the nearby public sidewalk, especially since there was no barrier to keep them out. Because of the dangerous activities in the area, injuries to such people were highly foreseeable, especially in light of the CTA's knowledge of numerous previous accidents.

In all of the United States and Canada, only in Chicago, on a 1 1/2 mile segment of the Ravenswood Line (including the place where plaintiff was killed), a less than 1 1/2 mile segment of the Douglas Line, and a few blocks segment of the Skokie Line, do trains operate by means of electricity received from an uncovered and non-guarded third rail, located at ground level, where the track intersects a public street and sidewalk. (R. 619, 882) Specifically, at 19 intersections, including along the Ravenswood Line where it intersected with Kedzie Avenue, the site of Mr. Lee's death, these trains were powered by a high voltage third rail, located at ground level (R 342); at other ground level intersections, trains were powered by overhead wires.(R.882,883) In all other cities, either people or trains are routed over or under the rail or street, or the trains use an overhead electric wire.

Moreover, at these 19 intersections, including the Kedzie intersection, there are no gates crossing the tracks designed to keep pedestrians from entering the track area where the third rail is located (Exhibit 11, Appendix B, Plaintiff-Appellant's Brief); by contrast, in Wilmette and Evanston, the CTA placed automatic track gates across the tracks, gates which opened to allow trains through, but then automatically closed to keep pedestrians from walking in the area of the third rail.(R. 598, 599, 601, 896, 1172. See Appendix E, Plaintiff-Appellant's Brief)

Thus, at the Kedzie crossing on the Ravenswood Line, thousands of people each day walk across the tracks on a wooden walkway, only 6 1/2 feet away from virtually certain death from the electrified third rail. (R. 260; Appendix B, Plaintiff-Appellant's Brief) No barrier gate is present to keep them from walking into the track area; nothing blocks them from stepping or stumbling onto the deadly third rail. (R. 626; Appendix B) The defendant's agent admitted at trial that, prior to 1977, the CTA was aware that "pedestrians had been gaining access to the track area by walking into the track area from the public sidewalk." (R. 611) In fact, the defendant's supposed safety mechanism -- cattle boards or "jaws", pieces of pointed lumber creating an uneven surface, and placed by the CTA from the sidewalk to the third rail -- only magnified the possibility of someone stumbling against the third rail. (R. 626, 629)

Thus, without question, the jury had abundant evidence that the dangerous aspect of defendant's property was located immediately adjacent to and accessible from public property, and that pedestrians foreseeably would enter the area.

A history of prior accidents at these crossings also made the likelihood of injury great. At trial, either by way of Request to Admit Facts, Answers to Interrogatories, Answer to the Complaint, Stipulations, and Admissions, defendant essentially conceded that, since 1968, it had knowledge of at least 11 incidents where individuals had come in contact with the electrified third rail at ground level operations of its trains. These included:

8/16/68 Douglas at Kildare. Man found on track, fatality.

8/16/69 Douglas Park yard at 54th. Man on track, fatality.

8/27/69 Douglas Park at Kostner. Child on tracks, fatality.

7/13/70 Douglas Park at Kildare. Man on tracks, fatality.

2/20/71 Douglas Park yard. Child on tracks, fatality.

5/21/72 Leland and Virginia. Child on tracks, boy on fence on third rail, burned arms and legs.

5/19/73 Leland. Child on tracks.

7/11/74 Ravenswood at Albany. Child on tracks, burned hands and legs on third rail.

7/13/74 Ravenswood at Kedzie. Youth fell on rail.

8/14/74 Ravenswood at Rockwell. Boy fell on third rail, electrocuted.

6/24/75 Douglas Park at Kildare. Boy fell on third rail, electrocuted.

Defense counsel stipulated in open court that the "CTA could reasonably anticipate people were contacting the third rail as it was at grade level and being killed." (R. 694, 695) CTA management also "were aware of people contacting the third rail." (R.435-36)

Thus, it was foreseeable that pedestrians such as plaintiff would enter the premises from the public sidewalk. And it was foreseeable that such persons would suffer death or great bodily harm from coming in contact with the electrified third rail.

2. The magnitude of the foreseeable injuries was enormous.

It is hard to imagine any more serious danger than that posed by the presence of the third rail 6 1/2 feet from the public sidewalk. The rail distributed 600 volts of electricity along the entire length of CTA tracks.

600 volts are 1/3 of the jolt administered by an electric chair to a condemned killer; but three times as much as the voltage powering a television set. In the last four years alone, newspaper articles from several urban areas show that nearly forty people have lost their lives from receiving 600 volt shocks in third rail accidents. (7)

These stories make clear that the chances of survival are extremely slim -- only two people survived their encounters with the third rail.

Moreover, the third rail can kill without direct contact. In a story most apt to the facts of the present case, the January 28, 1988 issue of Newsday, Part II, p. 3, carried the following story:

"IT WAS SURELY one of the most bizarre deaths in the annals of New York history, let alone its medical history. An unidentified man was traveling the subways one day when he felt the urgent call of nature. Unable or unwilling to seek out a public toilet, he proceeded to relieve himself on the subway tracks. But alas, relief was not forthcoming. The arc of the man's urine hit the third rail, conducting a high-voltage electrical current back to his body and killing him instantly." (emph. added)

In the present case, the decedent was found near, but not against the third rail, perpendicular to it. For all we know, he may have suffered the same fate as the New York man described above.

3. The steps taken by the CTA were wholly inadequate to prevent the foreseeable injuries.

The only steps taken by the CTA to try to prevent people from walking near the deadly third rail were: (1) placing so-called "jaws" in the six foot expanse between the public sidewalk and the deadly third rail (see Appendix F, Plaintiff-Appellant's Brief) to deter people from walking there; and (2) posting signs saying "DANGER - KEEP OUT Electric Current" on the utility house and fence alongside the tracks (See Appendix G, Plaintiff-Appellant's Brief). As will be demonstrated, these measures were completely inadequate to accomplish their goals. The CTA did not do several things which would have been more effective, normally: (1) using overhead trolley lines at or near intersections with public streets and sidewalks as it did at many other locations in its system, and as nearly every other city in the country does; (2) using gates to keep pedestrians out, but which open automatically to let trains pass through, and then close automatically, gates which the CTA had installed at its Wilmette and Evanston stops; (3) using covers over the third rail, at least near intersections, a method which would not interfere with the use of the third rail, but which would lessen the chances of contact with it; (4) placing rubber matting around the third rail on all sides within a reasonable distance of public crossings, to prevent grounding; or (5) placing signs that warned of the specific danger of the deadliness of the third rail, preferably consisting of universal symbols, and showing the exact location of the electrified rail.

The CTA's main method of keeping people away from the third rail was the use of cattle boards, which the appellate court referred to as "jaws" or "pedestrian access barriers." These were simply angled boards or logs placed on the ground between the walkway and the end of the third rail. (See Appendix F). Historically, they were used to prevent cattle from coming onto railroad tracks; they were effective for animals, because their small feet made it difficult or impossible to stand on them. However, as can been seen by the photographic exhibits, Appendix F and G, they will not prevent a human from standing or walking on them, though they might cause some unsteadiness.

In fact, the head of defendant's safety department admitted that the cattle boards merely tell a person he or she is going from a smooth surface to an uneven surface.(R.727) They "do not tell anyone there is electricity in the rail" (R 717) and "they do not tell anyone they are six or seven feet from . . . the start of the third rail." (R 718). One of defendant's witnesses, Mr. Millonas, agreed that the cattle boards themselves were an unsafe surface to walk on, and it was possible to twist an ankle or stumble while walking on them, including the possibility of stumbling onto the third rail. (R 625-26) Even defendant's expert witness, Mr. Wolgemuth, agreed that it was possible for one walking on the cattle boards to trip and fall against the third rail. (R 1256, 1261)

The signs posted by the CTA clearly were not adequate to warn of the specific dangers faced at the Ravenswood and Kedzie crossing. The signs announced "Danger" and "Electric Current", but did not say where the danger was, nor where the electric current was located, nor that the electric current was lethal. (R 1126-28) See Appendix B and G, Plaintiff-Appellant's Brief). One of the signs was on the little house alongside the track; the other was on a saw horse inside and next to the track. (Appendix B and G) Assuming one could see the signs at all, it was impossible to tell where the electric current and danger was. It could have been in the little house, or perhaps in the metal cabinets behind the house, or in the electric wires running to the box from above. (Testimony of Mr. Heilman, R.914-15). Mr. Heilman also pointed out that the signs were too far back from the actual location of the danger . . . "the warning is past the hazard itself" . . . and ineffective unless one already knew the source of the danger. (R. 914-15)

The signs did not warn of the enormity of the danger. There was no indication of the amount of volts -- 600 -- or that the current is found in the third rail -- nor any identification of the third rail (even by painting it red).

Perhaps most people who have grown up in Chicago have learned the purpose and danger of the third rail. But this Court may take judicial notice that the third rail system is not prevalent in most parts of the country, and its dangers may not be a matter of common knowledge to those from other areas. The Court may also take judicial notice that the specific location of Ravenswood and Kedzie is in a part of Chicago which in the last 10 years has become the center of the Korean and other oriental immigrant population. Surely, the Court may take judicial notice that many of these people do not know of the dangers of the third rail; and many cannot read English well. Plaintiff's expert, Mr. Heilman, pointed out that an international symbol, attempting to visually explain the dangers of the third rail, was needed under these circumstances. (R. 903-5, 914-15).

Defendant's own witnesses admitted that the signs totally failed as adequate warnings. Mr. Boyle conceded that the signs did not tell anyone that there was danger of electrocution from the third rail, that they made no reference to the third rail, and that the signs did not covey the message that the electric current was strong enough to cause death. (R 644-46) Mr. Kelly similarly testified that the signs made no reference to the third rail, did not inform anyone that the third rail had electricity within it, nor that the electricity was strong enough to kill.

Finally, even if the signs were more informative, the pictures of the scene (Appendix F, G) make clear that the signs were not lighted. It is quite unlikely the signs could have been seen in the dark and understood.

4. The CTA could have used much safer methods, which would have prevented the decedent's death, without an undue financial or other burden.

Several methods could have been used by the CTA to eliminate the enormous danger to the public of the third rail at ground level.

The most effective way to eliminate the danger would have been to eliminate the use of the third rail on ground level. (R 870) The total distance where the third rail is used to power trains is 3.2 miles. (R 873) The third rail could be replaced by a catenary system (a trolley or overhead wire system) like those used on several railroads, including the South Shore Line. (R. 873) It is possible to engineer the system to run on a third rail on the elevated portion of the system, and switch to an overhead, catenary system when it reaches ground level. (R. 394, 614) At a minimum, the CTA could have used the catenary system to power its trains at the 19 intersections with public streets and sidewalks, where the dangers to foreseeable victims were most acute.

Testimony also demonstrated that the CTA could have guarded the third rail at ground level, and particularly at ground level crossings, by using systems in place in all other parts of the United States -- normally, cover boards over the third rail. (R 885-86) The "shoe" -- the device on the train which collects the electricity from the third rail -- would have to be modified, but the CTA would not have to make changes in the third rail itself or the right-of-way. (R 988-89) Again, the cover board system could at least have been used at and near the 19 intersections with public streets and sidewalks, where the dangers to foreseeable victims were most acute.

Finally, the CTA could have treated the citizens of Chicago equally with those in Wilmette and Evanston: it could have installed track gates to keep people away from the third rail at grade level crossings. (R 888) When the CTA converted the means of powering its trains from overhead wire to third rail at ground level, at the request of the two Villages, the CTA installed chain-link fence gates, which automatically opened and closed to let trains through. These gates were closed when trains were not crossing, and are as effective as any fence in keeping people away from the deadly third rail. (See Appendix E, Plaintiff-Appellant's Brief) There have been no injuries or deaths at those third rail grade level crossings from the time of their installation to the time of this trial. (R 425, 1185) Nor was there a serious accident from a train striking a gate which did not open from 1973 to the time of trial. (R 1185)

Defendant did a study on the cost of installing such gates at all of its ground level crossings. The cost in 1975 would have been $575,000, with annual maintenance cost of $87,000. All of defendant's experts agreed that similar sliding gates were feasible from an engineering standpoint at the grade level crossings in Chicago, and specifically at the Ravenswood/Kedzie crossing. (R 898-901, 429, 1246)

Thus, in summary, it was the defendant CTA's choice to power its trains by electricity distributed by an uncovered third rail, with no barrier gates at ground level crossings. It chose to place the third rail approximately 6 feet from the edge of a busy public walkway in a busy inner city area. It chose to give minimal warning of the danger of the third rail itself, a rail which appears harmless as the other three rails (two running rails and one negative return rail) that run along the ground near it. The CTA chose this course knowing that pedestrians had been coming into the track area from the sidewalk, and knowing from past accidents of the reasonable possibility of future third rail accidents. And it chose not to utilize safer methods, used elsewhere on its own system, and throughout the rest of the country. The foreseeability of harm, the magnitude of the injury to be foreseen, and the relatively slight burden on the defendant to make the operation safe, easily justified the jury verdict finding that the CTA had not used ordinary, reasonable care under the circumstances.


The Appellate Court reversed the trial court's verdict in the present case by finding that the CTA was not conducting an affirmative activity when the decedent sustained his fatal injuries. (Appendix A, p. 12) It concluded that the use of lethal amounts of electric energy is not akin to the operation of a train, Shine v. Wabash Ry. Co., 8 Ill. App. 2d 521, 132 N.E.2d 41 (1956), or throwing lumber, McDaniels v. Terminal R.R. Co., 302 Ill. App. 332, 23 N.E.2d 785 (1939); rather, it was like a submerged barge, Votava v. Material Service Corp., 74 Ill. App. 3d 208, 392 N.E.2d 768 (1979), or an elevator shaft, Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85 (1922), or a refuse container, Phillips v. J.E. Martin Cartage Co., 42 Ill. App. 3d 890, 356 N.E.2d 1237 (1976).

We earnestly submit that the attempt to distinguish between affirmative activities and passive conditions, at least as applied to the facts of this case, makes little sense. In any case, we submit that the use of the third rail, with dynamic, active forces of electrified energy flowing through it, as the mechanism powering numerous multi-ton trains at the same time, and at high speeds, is certainly different than a dormant, inactive, quiescent garbage can or submerged hunk of metal.

The historical attempts to distinguish a landowner's obligations to trespassers from activities and from conditions provides one of the examples of the complexity and confusion that the common law distinction has spawned, and which has led the cases, discussed in section I, to throw out the basic rule itself. As is well pointed out in Plaintiff-Appellant's Brief, the distinction may make some sense in distinguishing activities from natural conditions on the land, such as ponds of water, or trees, or hills; it really makes no sense in the case of artificial "conditions."

Thus, is a purely stationary truck containing explosives a passive condition when plaintiff runs into it and it explodes? Has the plaintiff only been injured by a passive condition on the land when he falls into a pit of smoldering embers just because the owner is not there stoking the fire? Should it make a difference that a plaintiff steps into a vat of toxic wastes or instead suffers injuries when the owner negligently spills some of the toxic materials from a truck? Is gasoline in a tank only a passive condition, even though it is being actively used to power a huge truck? Is the water boiling in a steam engine only a condition even though the steam it generates is powering massive and dangerous equipment?

The third rail here is an essential component of the CTA's machinery. It is like the power cord on an electric chainsaw; it is the driving force for the pistons, brakes and other machinery on each of the many trains operating at any one time on the transit system. It simply cannot be equated to an inert pile of submerged steel, a non-operating refuse container, or an inanimate, motionless shaft, through which active machinery passes.

In a host of other contexts, the Illinois courts continuously have referred to the use of electricity as an "activity." Eg., Peoria Chapter, National Contractors Ass'n v. Central Illinois Light Co., 37 Ill. 2d 55, 225 N.E.2d 625 (1967)(distribution of electrical energy is an activity . . .); Phillips v. Illinois Bell Telephone Co., 34 Ill. 2d 234, 215 N.E.2d 264 (1966)(sale of electricity is an activity); Peoples Gas, Light & Coke Co. v. City of Chicago, 413 Ill. 457, 109 N.E.2d 777 (1952)(operation of electric trains as a proprietary or governmental activity); Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 566 N.E.2d 1283 (1990)(generating and selling electric power is an activity that affects the whole community); Nelson v. Commonwealth Edison, 124 Ill. App. 3d 655, 465 N.E.2d 513 (1984)(transmission of high voltage electricity is a dangerous activity); and Fallon v. Indian Trail School, 148 Ill. App. 3d 931, 500 N.E.2d 101 (1986)(dangerous activities, such as blasting, transport of explosives, maintenance of high electrical current . . . .). While none of these, except Nelson, concerned liability for damages, we believe it is telling that the natural inclination of the writers of these opinions is to automatically associate the idea of electricity with activities, and not as a condition on the land.

In conclusion, we submit that this Court should no longer distinguish between artificial conditions on the land and active operations in applying the duty of a landowner to an entrant on the land foreseeably in a place of danger; should the Court disagree and choose to maintain the distinction, we feel that there is little doubt in this case that the CTA's third rail system is an activity carried on. In either case, the Court should reverse the decision of the Appellate Court and reinstate the jury's verdict in the trial court.


For the above reasons, the Illinois Trial Lawyers Association, as Amicus Curiae, urges the Court to reverse the decision of the Illinois Appellate Court for the First District, and to reinstate the jury verdict and judgment thereon entered in the Circuit Court of Cook County in favor of the Plaintiff, Jae Boon Lee, Administratrix of the Estate of Sang Yeul Lee, Deceased.

1.  These are by no means exhaustive examples of the changes which have affected landowners. Other changes in the law have occurred in the areas of environmental regulations, zoning restrictions, nuisance law, the increased scope of liability for abnormally dangerous or ultrahazardous conditions, liability in urban areas for rotten trees, and the reallocation of the risk of loss between sellers and buyers.

2.  "The prestige and dominance of the landowning class in the nineteenth century contributed to the common law's emphasis on the economic and social importance of free use and exploitation of land over and above the personal safety of those who qualified as trespassers or licensees." Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 101 (D.C. Cir. 1972).

3.  And see Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 567 (1968):

"Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules - they are all too easy to apply in their original formulation - but is due to the attempts to apply just rules in our modern society within the ancient terminology."

4.  It should be stressed that in France, a civil law jurisdiction, which does not adhere to the common law immunities, there has been no unwarranted number of plaintiffs' verdicts. Hughes, Duties To Trespassers: A Comparative Survey And Revaluation, 68 Yale L.J. 633, 672-73 (1959); Mariorenzi v. DePone, Inc., 333 A.2d 127, 133 n.4 (1975).

5.  "Eliminating reliance on the common law classifications does not leave the jury awash, without standards to guide its determination of reasonable conduct. The principles which are now to be applied are those which have always governed personal negligence under our jurisprudence. The factors to be weighed in the determination of the degree of care demanded in a specific situation are 'the likelihood that [the landowner's] conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which [the landowner] must sacrifice to avoid the risk' and the jury should be so instructed." Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 105-06 (1972), quoting Judge Learned Hand in Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir. 1940).

6.  "The realities of modern life teach us that these labels are today irrelevant to a jury's task. Personal status no longer depends on one's relation to real property. With urbanized society comes closer living conditions and a more gregarious population. The trespasser who steps from a public sidewalk onto a private parking lot today is not the 'outlaw' or 'poacher' whose entry was both unanticipated and resented in the nineteenth century. It is contrary to reason to accept as a settled principle of law that a parking lot owner actually varies his conduct according to the status of those who walk across his boundaries." Smith v. Arbaugh's Restaurant, 469 F.2d 97, 103 (D.C. Cir. 1972)(Bazelon, C.J.) (Emph. added).

7. Chicago Tribune, April 29, 1990, Chicagoland, p. 3 (Man, 19, dies after falling on CTA rail); Newsday, Jan. 22, 1990, News p. 7 (Queens teen killed on LIRR Tracks); Time Magazine, Jan. 15, 1990, p. 153 (jury awards $13 million in damages to homeless man and family of late brother after the men came in contact with electrified city subway tracks); Chicago Tribune, Sept. 22, 1989, Chicagoland p. 3 (Boy electrocuted on elevated tracks); The Boston Globe, Sept. 6, 1989, Metro p. 29 (Dorchester boy electrocuted by T rail); Newsday, Aug. 9, 1989, News p. 7 (Grieving In The Station - subway accident); Newsday, Aug. 3, 1989, News p. 28 (Boy, 11, is found dead - electrocuted by third rail); Chicago News Star, Oct. 11, 1989 (Sympathy isn't enough - Robt. Barrera died July 31 on the third rail on the Ravenswood Line); Chicago Tribune, May 21, 1989, Chicagoland p. 11 (Obituary, Philip Padgett, 17, after falling on the third rail near the Kedzie Avenue station on the Ravenswood line)(emph. added); Chicago Sun Times, May 20, 1989 (Boy found dead on CTA 3rd rail); Chicago Tribune, April 29, 1989, News p. 5 (man electrocuted at CTA train stop); The New York Times, Oct. 8, 1988, Section 1, p. 32 (Harlem man killed by a subway train); Chicago Tribune, July 30, 1988, News p. 5 (Painter killed on "L" platform - fell onto third rail); Newsday, July 25, 1988, News p. 22 (Dead man is identified -arm struck third rail); United Press International, Aug. 18, 1987, Regional News (unidentified man electrocuted on third rail); Chicago Tribune, Feb. 3, 1987, City (Boy burned in fall on 'L' track's 3d rail). Nexis Library (emph. added).