Illinois Court Rules Pedestrian Can Sue Estate of Train Accident Victim Over Flying Body Part

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

22 thoughts on “Illinois Court Rules Pedestrian Can Sue Estate of Train Accident Victim Over Flying Body Part”

  1. Cook County judges will rule for the city govt every freaking time. They and the State’s Atty(prosecutors) are the reason Chicago cops kill everyone who looks at them wrong and IL exonerated more people on death row than they executed in 30 years.

  2. I’m not sure I’m understanding fully, but I think that Mespo’s quote indicates that once someone has crossed the line and engaged in a negligent act, then (s)he is responsible for any and all events that occur downstream from that act. “Forseeability” has no role here.

    What if Ms. Zokhrabov had been holding a cup of coffee, and when hit by the body part, that coffee had spilled on an electrical outlet, shorting it out. Then, a week later, an electrician is sent out to fix the shorted outlet, and is electrocuted when working on that outlet. Why shouldn’t the electrician’s family sue the Joho estate also?

    What about the electrician’s fishing buddies? Come spring, they wouldn’t have their friend’s bass boat to use. Haven’t they also been wronged? And the bait shop owner who would have sold them worms? Did the negligent character of Mr. Joho’s actions not make him responsible for this harm to the bait shop owner?

    It seems that if you don’t draw a fairly tight line around the immediate effects of the negligent act, then drawing the line further out becomes impossible for any judge to determine with any reasonable systematic standard.

    Why one tort would result in a successful claim against the negligent individual and another would be unsuccessful would seem to be the result of some sort of random (or personally biased) ex post facto decision making.

  3. Jesus Prof. your a stone cold person to make jokes in this case…I wonder though if the people on the platform could sue the metro for emotional harm or whatever it’s called due to their having to witness a grisly death. I wonder if they could sue the estate of the deceased. How macabre.

  4. Seems to me that it is not reasonable to expect that if you are hit by a speeding train part of your body will hit another person and injure them. Seems like an almost frivolous claim (despite the horrendous emotional toll this might have taken on her, much more then the broken wrist and injured shoulder I would think.)
    As a non lawyer I would think it is those on the train who were injured when it hit Mr. Joho who would have a claim on his ‘estate” (and Joe is probably right, maybe a dime per person(?) )

  5. If the woman was injured due to the negligence of Joho; I don’t understand the issue being personal. This woman is not suing out of personal grievence. She is suing to recover for her injuries. Nothing personal about that.

    She is certainly more deserving of damages than Joho’s family as Joho died of his own stupidity. This woman was injured by the same thing; his stupidity. he is responsible for both.

    Unusual? Yes

    But it seems a reasonable claim to me.

  6. All of the legal wrangling aside, what size estate could this 18-year-old kid have had? Was he already wealthy somehow?

  7. Such a strange case. Stay away from trains is the lesson here. While I lived and worked in Park Ridge, IL., a fellow Jaycee’s husband was struck by an express. Luckily, it was a glancing blow and he survived. He was lucky.

  8. “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.”

    For the reasons Frankly noted … Ms. Zokhrabov doesn’t want me on her jury.

  9. “the measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.” (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.”

    To me a large part of becoming mature is to understand that my reckless actions can have bad consequences for others. Leaving a banana peel on a sidewalk may lead to an unforeseen broken neck for someone unknown. I think that society must make the assumption that there is a baseline of prudence that each adult must exercise. This baseline must not be extended too far, or it might assume we have a duty to have our morning oatmeal analysed for poisonous content. Yet as with red lights, we ignore them at our own peril and are responsible for the consequences of our ignoring them.

  10. OS…

    Bad….bad….funny thought….

    I was listening about the concept of Comparative Negligence and its history in the US…it appeared that it was a concept used mainly for the Railroads and against workers…and the result was what we call Workers Compensation….

    I think it was disused on NPR….a bit back…

  11. Palsgraf is my favorite case pitting two eminent legal minds in direct opposition on the basis of tort liability for wrong based on duty owed. JT has related Judge Cardozo’s majority opinion which I consider a micro-duty– or one owed only to the plaintiff — as a pre-reqisite for recovery. Here is the equally peruasive Judge Andrews in dissent arguing for a macro-duty:

    But we are told that “there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff [*349] himself and not merely to others.” (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there— a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. (Perry v. Rochester Line Co., 219 N. Y. 60.) As was said by Mr. Justice HOLMES many years ago, “the measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.” (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.

  12. Speaking of natural selection, the Darwin Award winner has been identified. I could make all kinds of jokes about falling or flying body parts but will refrain. Or not.

    Several years ago a hunter won the Darwin Award. He spotted an elk standing on a ledge, had a perfect shot and killed the animal with one shot. The only problem was the elk was standing on a cliff edge directly above the hunter, who in his excitement, had forgotten all about Newton’s apple. He was crushed by the falling elk.

    This is the Darwin Award winner of the century, so far. Some people just cannot wait for the next elevator and take the matter into their own hands, so to speak. This unedited video is from the security camera in the elevator lobby.

  13. Actually I get the logic in this decision. While the death is tragic he acted in a careless way and caused injury to another person. Still, I’d hate to go to court with the dead guys family – the plaintiff is going to look like a bad guy/vulture. Probably one of those cases that gets settled in the hallway just before jury selection starts.

  14. The umbrella is no defense for the estate of the dead pedestrian and is instead the reason for the collision of his body with the train and thence his body with the plaintiff. I see a products liability case here and a deeper pocket. Why was there not a clear window in that umbrella so that the pedestrian could see the oncoming train. And, then where would venue be? I hope he bought the umbrella from a vendor in Cook County where the plaintiff would get a better jury rather than out in some suburb. Of course plaitniff would name the vendor so as to establish venue in the city. Then there is the comparative fault of the schmuck who failed to get out of the way of the flyng body parts. The case is much more complicated than posited in the article.

  15. Personally, I don’t think the plaintiffs will have a leg to stand on…….um, never mind. Forget I said that.

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