| NOTICE Decision filed 08/30/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the Disposition of the same. |
| PAULETTE CHANDLER, Administrator of the Estate of Douglas Chandler, Deceased, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD Defendant-Appellee. | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Randolph County. No. 00-L-25 Honorable Jerry D. Flynn, Judge, presiding. |
JUSTICE GOLDENHERSH delivered the opinion of the court:
The instant case originated after a car driven by Douglas Chandler (decedent) and atrain owned and operated by Illinois Central Railroad Company (defendant) collided witheach other. The crossing at which this accident occurred was once protected by gates, butin 1962, defendant petitioned the Illinois Commerce Commission (Commission) to removethe gates. The Commission granted defendant's petition, and the gates were removed. OnOctober 6, 1997, Paulette Chandler (plaintiff), the administrator of decedent's estate, filedan action against defendant. Plaintiff alleged that defendant's negligence caused decedent'sdeath. The third amended complaint, which is the subject of this appeal, was dismissed bythe trial court. The trial court ruled in favor of defendant's motions to dismiss, which werebrought pursuant to both section 2-615 and section 2-619 of the Code of Civil Procedure(Code) (735 ILCS 5/2-615, 2-619 (West 2000)). On appeal, plaintiff contends that (1) whether or not a duty exists is a question of law based upon the facts in the complaint, (2) the immunity conferred upon a railroad against its negligence in the case of the installationof flashing signals or crossing gates does not include the instant situation in which defendantpetitioned the Commission to remove the crossing gates, (3) section 1535.335(a) of Title 92of the Illinois Administrative Code (Administrative Code) (92 Ill. Adm. Code