BatesCarey attorneys Craig M. Leff, Natalie H. Koepke, and Bradley C. Williams achieved a complete victory in the Illinois Appellate Court, Second District, affirming summary judgment for Wisconsin and Southern Railroad (WSOR) in an appeal presenting an unsettled question of first impression that sought to significantly expand railroads' duties regarding pedestrian safety at vehicular grade crossings without sidewalks. 

The plaintiff alleged that he fell twice while walking across a railroad crossing near his home in Spring Grove, which had no sidewalk or pedestrian crosswalk, claiming that debris and deteriorated wooden ties left after a derailment caused his cane or foot to catch. BatesCarey obtained a transfer of the case from Lake County to McHenry County on forum non conveniens grounds and, after discovery, won summary judgment based on the absence of any duty and the open and obvious nature of the crossing's condition.

On appeal, BatesCarey argued that Illinois Commerce Commission regulations require vehicular grade crossings to be safe for vehicles, not pedestrians, absent an adjoining sidewalk, and that a pedestrian's lawful use of a roadway does not transform him into an intended user of the crossing. BatesCarey also argued that the condition was open and obvious given the plaintiff's repeated use of the crossing and knowledge of the debris and deteriorated ties, and that neither his self-created distraction nor his choice of route triggered an exception. The Second District agreed on all points, holding that no authority supported the plaintiff's proposed duty and that imposing one could require pedestrian upgrades across the railroad's entire system.