MADISON - ST. CLAIR RECORD

Illinois Central Railroad had no duty to install, or petition the state for permission to install, automatic gates at a Marissa crossing where a mother and daughter were killed more than seven years ago.

The Fifth District Appellate Court answered certified questions in a St. Clair County wrongful death suit filed by Michael Porter of Marissa over the deaths of wife Tina Porter and daughter Allaysa Porter. They were struck and killed by a Union Pacific train at a crossing equipped with luminous lighting on South Main Street on Nov. 20, 2006.

Porter, represented by Thomas Q. Keefe, Jr. and Samantha Unsell of Belleville, has argued that the railroad was negligent in failing to equip the crossing with automatic gates.

In turn, Illinois Central, represented by Thomas Jones and Harlan Harla of Thompson Coburn in Belleville, responded that because the flashing light signals had been installed pursuant to the approval and order of the Illinois Commerce Commission (ICC), statute dictates that the lights must be deemed adequate, and it cannot be found negligent.

Circuit Judge Vincent Lopinot asked the court to answer whether the lights at the crossing were "still" deemed adequate and appropriate in light of an Aug. 15, 2005 letter from Rail Safety Program Administrator Michael Stead - more than a year before the accident - that stated that conditions met the ICC's minimum requirements for installation of gates, even though the ICC had not yet ordered the installation.

Writing for the majority, Justice Thomas Welch rejected plaintiff's arguments that the letter "somehow revoked" a 1962 ICC order approving luminous flashing lights, and because they were no longer "approved," they could no longer be deemed adequate and appropriate.

Welch noted that Stead stated in his letter that the railroad had no authority to install the automatic gates without an order. Such an order was entered by the ICC on Aug. 29, 2007, nine months after the accident.

"Once installed pursuant to Commission approval, the protective devices retain the presumption of adequacy and appropriateness until they are replaced," Welch wrote.

"They do not lose the presumption simply because a future change has been approved or ordered by the Commission."

Welch also answered "clearly no" to the question: "Did the Illinois Central Railroad have a duty to use reasonable care to install automatic gates at the South Main Street crossing in Marissa, Illinois prior to November 20, 2006?"

"Because the flashing luminous light signals had been installed pursuant to the approval and order of the Commission, they must be deemed adequate and appropriate, and not only did the defendant railroad have no duty to install automatic gates at the crossing, it was expressly prohibited from doing so by the Act," he wrote.

Justice Stephen Spomer concurred.

Justice Richard Goldenhersh dissented on the quesion of whether the railroad had a duty to use reasonable care to install the automatic gates.

He wrote that that crossing was on a waiting list for a formal order from the ICC, and that a determination had already been made that the crossing was unsafe and the need for upgrade already proven.

"The record suggests a funding concern, not a contest over whether the conditions were safe or 'approved,'" he wrote. "Defendant's strategy in this contest was to lay low and silent. There was no other impediment to the changes or reason to assume that the crossing did not fit in the category of those 'approved.'

"Defendant contends that failure to afford statutory protection would create a duty for it to file a petition for modification. This is without merit. Defendant's reaction upon being informed of the investigation was not merely a failure to file a petition for modification–defendant reacted with silence."

The case has been remanded for further proceedings.