Chiriboga v. National Railroad Passenger Corporation et al

Filing 179

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 10/7/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN CHIRIBOGA, Individually
and as Administrator of the Estate of
JOYCE CHIRIBOGA, Deceased,
Plaintiff,
vs.
NATIONAL RAILROAD PASSENGER
CORPORATION,
Defendant.

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08 C 7293

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion of Defendant National
Railroad Passenger Corporation (“Amtrak”) for summary judgment against Plaintiff
John Chiriboga (“Chiriboga” or “Plaintiff”), individually and as administrator of the
estate of Joyce Chiriboga (“Joyce”). For the reasons set forth below, the motion is
denied.
BACKGROUND
This case arises out of an accident that occurred on November 8, 2008, at the
Edgebrook Metra station (“the Edgebrook station”) in Chicago. That night, Joyce and
her sister, Diane Moss (“Diane”), entered the Edgebrook station on the opposite side of
the tracks from where Diane was supposed to board a northbound Metra train scheduled

to arrive at approximately 7:00 p.m. To reach the correct, eastern platform, the sisters
needed to cross the tracks via the pedestrian crosswalk.
Diane was leading the way and Joyce was following her. As Diane reached the
western platform, she looked to her right, saw no northbound Metra train approaching,
and kept walking across the five-foot wide western platform at a regular pace. She does
not remember looking to her left while walking across the platform. Diane decided to
cross the tracks and Joyce followed her. As Diane started crossing the tracks, she looked
straight ahead. She was past the first rail and taking the next step when she saw
headlights in her peripheral vision on her left hand side. She looked to the north, saw
headlights, heard a horn, and ran across the rest of the walkway, safely escaping from
a southbound Amtrak train. Joyce, who was still following Diane, was struck and killed
by the Amtrak train.
On December 22, 2008, Chiriboga, individually and as administrator of the estate
of Joyce, brought suit against Amtrak under the Illinois Wrongful Death Act. 740 Ill.
Comp. Stat. 180/0.01. Each side now disputes whether the warnings at the Edgebrook
station were sufficient to signal the train’s arrival. Amtrak’s position is that Joyce was
aware of the Amtrak train’s arrival and chose not to yield. According to Amtrak, the
train’s presence was unmistakable because Joyce’s view from the platform was
unobstructed and the train was carrying two headlights on the locomotive’s front and

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two auxiliary lights on either side of the plow, which formed a distinguishable
triangular pattern. Had she looked, Amtrak argues, she would have seen the onrushing
train. Furthermore, Amtrak submits Joyce received additional warning from the
activated grade crossing warning system, consisting of flashing lights, crossing gates,
and ringing bells, located at Devon avenue, one hundred yards south of the pedestrian
crosswalk. Claudia Medina, a witness hired by the Plaintiff, testified that right before
the accident, she was sitting in her car in a parking lot adjacent to the Edgebrook
station, and heard the bells ringing at the Devon Avenue crossing.
Plaintiff argues that Amtrak’s warnings were insufficient to signal the train’s
approach because the locomotive engineer, Larry Abfalder (“Abfalder”), negligently
operated his train by failing keep an adequate lookout for pedestrians and timely blast
the horn and ring the engine bell while entering the Edgebrook station. In support of his
contentions, Plaintiff presents expert testimony from Richard Beall (“Beall”), a
locomotive engineer who has worked several years as a train conductor on passenger
trains. Amtrak now moves for summary judgment.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to summary judgment as a matter of

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law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when the evidence
is such that a reasonable jury could find for the nonmovant. Buscaglia v. United States,
25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears
the burden of demonstrating the absence of a genuine issue of material fact by specific
citation to the record; if the party succeeds in doing so, the burden shifts to the
nonmovant to set forth specific facts showing that there is a genuine issue of fact for
trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
considering motions for summary judgment, a court construes all facts and draws all
inferences from the record in favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). With these principles in mind, we turn to the instant
motion.
DISCUSSION
I.

Legal Posture
As a preliminary matter, the Court clarifies the legal posture of the case. In the

complaint, Plaintiff argues that the grade crossing accident resulted from Amtrak’s
failure to (1) operate its train at a moderate speed that would allow the train’s headlights
and engine bell to provide better warning to pedestrians, (2) ring the engine bell fifteen
seconds before reaching the Edgebrook station in violation of 49 C.F.R. § 222.27, and
(3) continuously ring the engine bell in violation of Section 9-124-410 of the Chicago

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Municipal Code. Amtrak moves for summary judgment on these claims and Plaintiff
does not contest Amtrak’s position. Accordingly, summary judgment is granted on the
aforementioned claims.
Additionally, Plaintiff raises, for the first time in his response to Amtrak’s motion
for summary judgment, a failure to instruct claim arguing that Amtrak failed to
periodically instruct its employees on the meaning and scope of the railroad’s operating
rules. According to well-established federal procedural rules, a plaintiff is not allowed
to raise an argument for the first time at the summary judgment stage. Johnson v.
Cypress Hill, 641 F.3d 867, 873 (7th Cir. 2011). Furthermore, discovery in this case
closed on August 18, 2010. If the Court allows this claim to proceed, Amtrak would
require additional discovery. For all these reasons, the Court strikes Plaintiff’s failure
to instruct claim.
II.

Illinois Wrongful Death Act Claim
Plaintiff alleges that Amtrak was negligent in the wrongful death of his wife

because it failed to provide sufficient warning signals of the train’s approach. To
succeed under the Illinois Wrongful Death Act, a plaintiff must establish, among other
elements, that the defendant owed a duty to the decedent, the defendant breached that
duty, and the breach proximately caused the decedent’s death. Thompson v. City of Chi.,
472 F.3d 444, 457 (7th Cir. 2006) (citing Leavitt v. Farwell Tower Ltd. P’ship, 625

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N.E.2d 48, 52 (Ill. 1993)). In Illinois, a railroad company has a common law duty, with
respect to crossings, to provide adequate warning to pedestrians. Magna Bank of
McLean Co. v. Ogilvie, 601 N.E.2d 1091, 1095 (Ill. App. Ct. 1992). Railroad personnel
are required to keep a proper lookout for pedestrians in the vicinity of the tracks,
particularly in populated areas and often-traveled crossings. Shine v. Wabash R.R., 132
N.E.2d 41, 46 (Ill. App. Ct. 1956). If a person is observed on or near the tracks in a
place of danger, the train crew has to give a warning signal. Magna Bank, 601 N.E.2d
at 1095. “[T]he amount of protection required at a crossing is strictly a jury question to
be determined from the circumstances of each case.” Baker v. Norfolk & W. Ry., 256
N.E.2d 887, 891 (Ill. App. Ct. 1970). Likewise, contributory negligence and proximate
cause are ordinarily questions for the trier of fact and are rarely decided as a matter of
law. West v. Kirkham, 566 N.E.2d 523, 526 (Ill. App. Ct. 1991) (contributory
negligence); First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068, 1071 (Ill.
App. Ct. 1999) (proximate cause).
Amtrak agrees that it was obligated to provide adequate, sufficient warnings to
pedestrians when its train was approaching the Edgebrook station, but contends it has
fulfilled that duty. Amtrak further argues that it would in any event prevail because
Joyce’s failure to look and listen for approaching trains was the sole proximate cause
of the accident.

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Plaintiff, however, has set forth specific facts showing that there is a genuine
issue for trial. The record contains conflicting evidence as to whether Abfalder
negligently operated his train by failing to keep a proper lookout and promptly sound
its audible warnings, namely, the locomotive horn and the engine bell.
With respect to the locomotive horn, Diane testified that while she was walking
across the western platform at a regular pace, she did not hear the horn until she was
past the first rail. Additionally, apart from the fact that Abfalder said that he did not
blow the horn because the event was totally unexpected, he admitted that he was aware
that the Edgebrook station was a busy station with a lot of pedestrian crossings, and that
“when he first saw the individuals they weren’t at the rail yet.” Based on this last
statement - that when he first saw them they were not at a rail yet - Beall, the
locomotive conductor expert hired by Plaintiff, opined that Abfalder should have seen
Diane and Joyce at least when they were approaching the tracks and that, under
Amtrak’s operating rules, Abfalder should have blown the horn to signal the train’s
presence.1 For purposes of this motion, an issue of fact is created thereby.
The record is similarly unclear as to whether Abfalder sounded the engine bell
while the train was approaching the station. Although Abfalder testified that it is was

1

Amtrak argues that Abfalder could not have seen Joyce earlier because when she stepped
on the five-foot wide platform, the train’s headlights did not illuminate her and Abfalder’s attention
was focused on Diane who was running across the tracks. However, the Court is not armed with the
power to weigh the evidence. See Baker, 256 N.E.2d at 891.
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his usual practice to automatically activate the engine bell every time the train reached
a station, he could not recall whether he had activated the engine bell on that particular
occasion.2 Plaintiff’s acoustical engineer, Kenric Van Wyk, also determined that the
engine bell of an Amtrak train is audible to a person with normal hearing standing on
the western platform for approximately two to three seconds before the train reaches the
pedestrian crosswalk. See also Applegate v. Chi. & N.W. Ry. Co., 78 N.E.2d 793, 797
(Ill. App. Ct. 1948) (finding that train whistle of a train traveling at 90 mph could not
be heard until four seconds before crossing). Drawing all inferences in favor of the
nonmoving party, a jury could determine that Abfalder forgot to ring the engine bell and
that, assuming he had, three seconds were not enough for a forty-eight year old woman
to clear from the danger of an onrushing train.
Finally, questions regarding proximate cause and contributory fault must be
submitted to the finder of fact. It is the jury’s task to determine whether a breach was
the proximate cause of the injury and whether plaintiff’s contributory negligence
precludes or limits recovery.

2

Although Amtrak asks the Court to admit Abfalder’s testimony that he had a practice of
sounding his engine bell every time he entered a station, in a summary judgment context, a Court
draws all inferences in favor of the nonmoving party.
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Under the particular circumstances of the case, Plaintiff has raised genuine
factual issues that must be presented to a jury. Accordingly, Amtrak’s motion for
summary judgment is denied.
CONCLUSION
Based on the foregoing analysis, Amtrak’s summary judgment motion is denied.

Charles P. Kocoras
United States District Judge
Dated: October 7, 2011

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