A state appeals court has ruled the husband of a woman who was struck and killed by an “L” train while retrieving her cell phone from the tracks where it had fallen cannot sue the CTA over his wife’s death, because the court said the man can’t prove the train operator or a security guard on the platform were anything worse than negligent in the accident that claimed the woman’s life.
In the ruling, delivered in early February, a three-justice panel of the Illinois First District Appellate Court agreed a Cook County judge did not err in siding with the Chicago Transit Authority in the action brought by plaintiff Shearal Cole.
Cole had filed suit in August 2019, about two months after his wife, Felon Nicole Smith, was struck and killed by a CTA train in the 69th Street Red Line station.
According to court documents, Smith was on the platform around 12:38 p.m. waiting for a train, when she dropped her mobile phone off the platform to the tracks below.
According to a description of CTA video showing the incident, as discussed in court documents, Smith talked briefly with another man on the platform, pointing to her phone. She then lowered herself down to retrieve her phone.
However, the unidentified man on the plaform and another CTA passenger are then seen pointing toward an approaching northbound train, imperiling Smith.
According to court documents, Smith unsuccessfully attempted to raise herself back onto the platform. She then attempted to run toward a staircase at the end of the platform to escape the train, but was struck and killed as the train attempted an emergency stop.
In all, Smith was on the tracks for about 18 seconds before she was struck and killed by the train, according to court documents.
According to court documents, a contracted security guard was on the platform at the time and noticed Smith on the tracks, but did not take action to attempt to help her back onto the platform.
According to court documents, the guard, identified as Fabeous Dowd, said he was following his training, which he claimed instructed him to never release the leash of his security dog for any reason.
Further, according to court documents, video showed the driver of the train, identified as Philip Hamilton, reportedly had looked away from the tracks toward the adjoining expressway for about 11 seconds as he approached the 69th Street station.
According to court documents, Hamilton acted quickly to stop the train once he looked back and noticed Smith on the tracks. He threw the so-called “deadman’s switch,” which immediately acts to bring the train to a stop.
But he did not throw the train’s emergency brake.
According to testimony discussed in the decision, Hamilton brought the train to a stop within 12.6 seconds, traveling an additional 327 feet.
However, according to testimony, the train would have stopped in just 177.4 feet if the emergency brake had been engaged.
In his lawsuit, Cole said the CTA should pay for Smith’s death. He asserted the actions of train operator Hamilton and security guard Dowd caused Smith’s death, because he claimed they could have prevented the accident.
Cook County Judge Scott D. McKenna, however, granted judgment to the CTA. He found no one involved in the incident acted with willful or wanton disregard for Smith, once they took notice of her on the tracks.
Further, the judge determined the danger posed by going down to the tracks should have been open and obvious to a reasonable person.
On appeal, the First District justices agreed.
“… The only duty that the CTA and Mr. Hamilton owed Ms. Smith was to refrain from willful and wanton conduct,” the appellate justices said. “The danger of an oncoming train was open and obvious, and she was a trespasser.”
In this incident, they said there was no evidence Hamilton acted with willful or wanton disregard for Smith’s wellbeing, noting he acted immediately to stop the train after noticing she was on the tracks, whether or not he threw the emergency brake.
“… Where someone in Mr. Hamilton’s position fails to take all possible measures to avoid hitting someone on the tracks, ‘including reducing speed, stopping and/or blowing the horn’ this does not, in itself, rise to the level of willful and wanton,” they wrote.
“… Here, Ms. Smith chose to lower herself onto the tracks and place herself in a position of peril. 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 had put herself in.”
The court further ruled that Cole could not sue the CTA over the actions of the security guard, because the guard was not employed by the CTA, but rather by private security firm AGB Investigative Services.
AGB and Dowd were also named as defendants in the action, but the appellate decision did not address the counts against them.
The decision was issued as an unpublished order under Supreme Court Rule 23, which limit its use as precedent.
The decision was authored by First District Appellate Justice Mary L. Mikva. Justices Sharon Oden Johnson and Raymond W. Mitchell concurred in the ruling.
This article was first published in Cook County Record.
