Kreisman Law Offices Professional Corporation
In a recent ruling, a Cook County Circuit Court judge held that the substantive defense of tort immunity does not apply to common carriers because that would represent a procedural limitation on the assertion of a right. Ortiz-Rivera v. Northeast Regional Commuter Railroad Corp., d/b/a Metra, No. 07 M5 2363.
The ruling by Judge Brosnahan is consistent with an Illinois Supreme Court ruling issued in April 2008 in Smith v. Waukegan Park District, 2008 WL 174664. In that case, the high court unanimously held that local governments are not immune from lawsuits alleging retaliatory discharge for the filing of a workers’ compensation claim.
Ortiz-Rivera involves a December 2006 incident involving a Cook County resident who was a passenger on a Metra southwest line train departing from Chicago’s Union Station. In moving from car to car, the plaintiff, after releasing the door, it closed quickly and hit her fingers resulting in a broken left small finger. On the date in question that train, along with several others, had been delayed due to a snow storm.
In past lawsuits, Metra routinely used a tort immunity defense which stated that Metra was immune based on the specific terms set out in the Act itself. In Ortiz-Rivera, Metra filed a motion to dismiss which stated that the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10, immunized it from injuries that occur due to weather.
Plaintiff argued that the Tort Immunity Act did not apply to Ortiz-Rivera because “nothing in this Act affects the liability, if any, of a local public entity or public employee based on . . . operation as a common carrier.”
The Circuit Court judge held that her ruling was based upon what she thought was a very clear, unambiguous exemption of any entity operating as a common carrier such as Metra. The judge also granted the plaintiff’s motion to strike Metra’s first affirmative defense based upon the Tort Immunity Act. This ruling is in line with other rulings that refuse to protect local governments and common carriers from legal recourse.
For over 30 years, Kreisman Law Offices has been practicing personal injury law in Illinois, serving areas of Chicago and Cook County such as Evanston, Des Plaines, Oak Park, and Naperville.