One of my torts colleagues sent along an article on a rather bizarre case out of Illinois where an appellate court ruled that a bystander could sue the estate of the victim of a train accident after part of the victim’s body struck the bystander. For those who read the Palsgraf case in first-year torts on proximate causation, the case offers an interesting — if gory — twist.

In a 2008 accident aptly described by the court as “tragically bizarre,” Hiroyuki Joho, 18, was rushing to catch a Metra train in the rain with an umbrellas over his head. He ran in front of a Southbound train traveling more than 70 mph. Part of his body was thrown 100 feet on to the southbound platform, where it struck Gayane Zokhrabov, then 58. The impact knocked Zokhrabov to the ground, broke her wrist, and injured her shoulder.

When Zokhrabov sued, the trial judge dismissed the case finding that the accident was unforeseeable for Joho and thus failed the test of proximate cause. The appellate court disagreed and found such an action foreseeable. The court dismissed the novel and gory facts by holding that “[i]t is a ‘well-established principle of tort law that the particular manner or method by which a plaintiff is injured is irrelevant to a determination of the [defendant’s] liability for negligence.’ Nelson v. Commonwealth Edison Co., 124 Ill. App. 3d 655, 660, 465 N.E.2d 513, 517, 80 Ill. Dec. 401 (1984).” The court then reached its proximate causation conclusion:

We reiterate that the potential outcome of his conduct appears to be relatively limited, since the path of the train was fixed, the pedestrian crosswalk was marked, the train ran within the established speed limit, its speed, weight, and force grossly exceeded any pedestrian’s, and commuters were congregating to the side of the train tracks for the next scheduled public departure. Accordingly, we further find that it was reasonably foreseeable that the onrushing Amtrak train would strike, kill, and fling his body down the tracks and onto the passenger platform where Zokhrabov was waiting for the next scheduled Metra departure. We find that the trial court erred in concluding that Joho could not reasonably foresee that his negligence in the active train station would cause injury to someone standing in the passenger waiting area.

Continuing with the four elements of a duty analysis, we find that the reasonable likelihood of injury occurring was great given the relative force of the approaching Amtrak train, 1-10-2672 that the magnitude of the burden imposed by guarding against the harm was insignificant, since Joho needed only to pause, look down the tracks, and then time his crossing accordingly, and that the consequences of placing the burden on Joho would have been minimal.

The case naturally brings the classic Palsgraf v. Long Island Railroad. In that case, a man running for the Long Island Railroad was carrying a package, which he dropped as he tried to jump on the train. He was assisted in his attempt to get on the train by two railroad guards. When the package fell, it exploded due to fireworks inside. That small explosion caused scales at the other end of the platform to fall on Mrs. Helen Palsgraf, who sued the railroad. While Palsgraf prevailed in the lower courts, the Court of Appeals reversed and dismissed the case in a famous opinion by Chief Judge Benjamin Cardozo. Cardozo ruled that liability could only be based on a duty arising from a reasonably foreseeable danger — creating the so-called zone of danger test for proximate causation. Alternatively, Judge Andrews wrote a dissent advocating a standard that allowed liability where the injury was the natural and continuous result of the defendant’s negligence.

This case makes the Cardozo test relatively easy since the zone of danger would likely include the range of flying debris and body parts.

Joho’s family is also suing. Their action against the railroad claiming that the railroad failed to warn Joho that the train was actually an express Amtrak train and not his Metra train. The case was previously dismissed by a Cook County judge on the grounds that the danger was “open and obvious.” After that decision was upheld on appeal, the family’s lawyer is appealing to the state supreme court.

Even if negligence if established, however, that raises a serious plaintiff’s conduct issue of comparative negligence. In 1981, the Illinois Supreme Court got rid of the old contributory negligence rule that barred recovery if a plaintiff was even one percent at fault. Alvis v. Ribar, 85 Ill. 2d 1, 27-28 (Ill. 1981). Instead, it adopted the “pure form” of comparative negligence, a plaintiff’s recovery for injury was reduced by the percentage of his own negligence. In 1996, however, the state went to a modified comparative negligence standard that could pose of problem for the family. Under the modified approach, Joho’s family must show that he was less than 50% at fault. Notably, in its appellate decision involving the injured bystander, the Illinois appellate court emphasized the open and obvious danger of trains and held “Even if Joho mistook the Amtrak train which was not stopping at the station for the Metra train which he intended to board, the record indicates he failed to exercise reasonable care for his own safety when he failed to look down the train tracks before attempting to cross the tracks in front of an approaching train.”

When I teach res ipsa loquitur, I share my collection of falling and flying body cases with the class — torts involving falling or flying bodies of one type or another. It is an odd collection I began while first-year law student at Northwestern. This is certainly one of the more gory additions to that list. What makes this case particularly novel is the plaintiff. As the appellate court noted, “There are no reported cases we have found in which a pedestrian who was struck and injured by a flying body sued the deceased person’s estate. There are a few cases in which a pedestrian was struck by a train or car and flung into another person. In these cases, however, the injured person sued the railroad or automobile driver.”

I expect the Joho family will appeal and we will be watching the case closely . . . from a safe distance.

Source: Chicago Tribune

Kudos: Professor Roger Schechter