FREQUENT TRESPASS DOCTRINE

The Illinois Appellate Court recently discussed the "Frequent Trespass Doctrine" in the Nelson v. Northeast Illinois Regional Commuter case. In that case, Shanica Nelson filed suit against Metra after she was struck by a commuter train while trespassing on Metra's tracks. Shanica was injured on September 2, 1999. She had watched her boyfriend's football practice and walked home with him after practice. As she did so, she came to a path near the Metra tracks that was apparently used quite often by kids in the area. She followed the path to where it ended very close to the actual tracks. She then walked across the tracks, intending to enter the path again on the other side. After crossing the tracks, Shanica was walking toward the path on the other side when she was struck by a train. Metra moved for summary judgment, arguing in part, that the train tracks represented an "open and obvious" danger. The Court denied the motion, but agreed to certify the following question: Whether the risk of crossing a railroad track on which trains may be operating, is an open, obvious peril for which the railroad owes no duty, regardless of the legal status of the individual crossing the track.

Plaintiff argued on appeal that the facts alleged in the complaint placed plaintiff in the "frequent trespass exception". Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of activities where the landowner knows, or should know, that trespassers habitually enter its land at a certain point. The Appellate Court explained the rationale for the exception, citing Miller v. General Motors, 207 Ill.App.3d 148, "This exception has developed because of the concern that human safety ought to be more important than the landowner's interest in unrestricted freedom to use his own land as he sees fit. This view is especially prevalent in cases in which the burden on the landowner and the expense in taking precautions to prevent harm are not great. If that burden is very slight and the risk of harm to the trespasser is correspondingly very great, some commentators have found good reason to hold the landowner liable for injuries sustained on his land by the trespasser. This rule applies mostly in the case of frequent trespass upon a limited area. Miller, 207 Ill.App.3d at 155. The doctrine, the Court noted, is focused on the landowner's knowledge of the risks, not on the trespasser's knowledge of the risks involved. The nature of the risk as open and obvious becomes irrelevant - the only issue under the doctrine is whether the landower was aware of the risk and was in a position to prevent harm.

The Court went on to hold that any open and obvious risk in crossing the track did not negate the Metra's duty toward plaintiff under the frequent trespass doctrine. The case was then remanded back to the trial court. There is some additional discussion in the opinion relative to the applicability of certain provisions of the Tort Immunity Act. This post is long enough though, and there is no good reason to bore you any further.