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Illinois Appellate Court affirms summary judgment for CTA after woman dies on the tracks

4/24/25

By: Madeline M. Krolczyk

The Illinois Appellate Court (First District) affirmed summary judgment for the defendant Chicago Transit Authority (CTA) and its driver when it found that no duty of ordinary care was owed to a trespasser on its railroad tracks, the driver’s behavior was not willful and wanton and the CTA was neither liable for its negligent hiring of a contracted security guard or vicariously liable for his actions.

In Cole v. Chicago Transit Authority, Plaintiff Cole brought this wrongful death and survivor action on behalf of his deceased wife’s estate. On June 27, 2019, Cole’s wife, Nicole Smith, dropped her cell phone onto the tracks at the 69th Street Red Line station in Chicago, Illinois. When she jumped down from the platform onto the tracks to retrieve it, she saw an oncoming train. Trying to get back up on the platform, she ran toward the stairs, also in the direction of the oncoming train and was struck and killed by the oncoming train.

Cole argued that the conductor of the train was negligent in maintaining a proper lookout. He also alleged the security guard, hired and managed by AGB Investigative Services Inc. (AGB), was negligent in failing to alert the rail operator about Smith’s presence on the tracks. The lawsuit also included claims of negligent hiring, retention and training for both AGB and the CTA. The CTA and conductor filed a motion for summary judgment, arguing there was no liability based on the operator’s conduct because there was no duty owed to a trespasser for an open and obvious condition and Smith’s death was a result of her own conduct. The circuit court granted their motion and found no duty was owed in this case because the dangers of the track and train were open and obvious. Cole appealed. 

The Court focused much of its analysis on the first question: what duty the CTA and its operator owed Smith. The court found the standard of care to be willful and wanton, not reasonable care, because the danger was open and obvious and Smith was a trespasser. The Court noted many cases where a moving train “presents a danger that is so obvious” that even a child should be expected to appreciate it. It specifically noted that there was no crossway, the tracks were several feet below the clearly marked train platform and trains regularly arrive only minutes apart. The Court warned that the CTA did not owe a duty to Smith, only the duty to refrain from willful and wanton conduct where the danger was so open and obvious.

Cole argued that it must be a question of fact that the actions of the conductor were willful and wanton. Yet, the court relied on two videos: one inside the train cab and another on the platform. The video facing the platform shows a bystander pointing at the oncoming train and Smith running towards the stairs. The video inside the cab depicts the driver looking out the right window, turning back to the rail and his expression changing immediately when discovering Smith on the tracks. Within one second, he released the train’s controller, triggering the “dead man” brake and engaging the track brake, bringing the train to a complete stop within 12 seconds. The Court found that Smith chose to lower herself onto the tracks and place herself in a position of peril, and neither the CTA nor its operators owed her a duty to maintain a lookout for her in this unauthorized area or to rescue her from a position of peril that she put herself in. Hamilton’s 11-second distraction did not rise above “mere inadvertence, incompetence or unskillfulness. The court notes that “the tragic outcome of this case notwithstanding, the undisputed facts are that Hamilton was driving below the speed limit and had not yet discovered Smith.”

The Court further notes that a train operator is under no duty to keep a lookout for trespassers and is not engaged in willful and wanton misconduct because he becomes distracted and glances away from the tracks for a matter of seconds. This case underscores the legal distinction between ordinary negligence and willful and wanton misconduct, particularly concerning trespassers.

For any questions or comments on this case or the issues, please contact Madeline M. Krolczyk at madeline.krolczyk@fmglaw.com or your local FMG attorney. 

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