Choate v. Indiana Harbor Belt Roailroad Company
954 N.E.2d 760
Ill. App. Ct.2011Background
- 12-year-old plaintiff, trespasser on railroad right-of-way, attempted to jump onto a moving freight train (9–10 mph) behind a Chicago Ridge lot with CSX, IHB, and B&OCT involved; the train ran over his left foot resulting in below-knee amputation.
- The fence along the tracks was incomplete and there was a broken hole in the fence; local agencies had some trespass warnings and a three-strikes program for juveniles on railroad property.
- Evidence showed multiple witnesses (peers and adults) observed trespass and a lack of effective pedestrian crossing points along a 6,000-foot corridor between Central and Ridgeland Avenues; Dr. Berg proposed engineering remedies (fencing and an overpass at Austin Avenue) to channel pedestrians to a crossing.
- The circuit court initially granted summary judgment, later vacated in light of factual questions for the jury; jury returned a verdict for plaintiff ($6.5 million, reduced to $3.9 million for 40% plaintiff fault).
- Defendants challenge multiple trial rulings and the denial of their motions for judgment notwithstanding the verdict; the appellate court affirmed the trial judgment and rejected the challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jumping onto a moving train was an open and obvious danger as a matter of law. | Choate argues the danger was not obvious given (a) speed 9–10 mph, (b) lack of established crossing, and (c) evidence of pedestrian demand. | Defendants contend the danger was obvious; under pre-Kahn decisions, trespassers faced no duty where danger is obvious. | Not as a matter of law; issue for the jury to decide. |
| Whether plaintiff subjectively appreciated the danger and full risk of harm. | Plaintiff contends he did not appreciate the danger before injury; any warnings came after the incident. | Defendants argue clear subject appreciation due to warnings and prior trespass history. | Question of fact for the jury; not dispositive as a matter of law. |
| Whether the expense/inconvenience of remedying the dangerous condition was slight compared to the risk to children (Kahn test). | Dr. Berg’s plan (fence corridor plus Austin Avenue overpass) would be feasible and provide a slight cost relative to risk. | Improvements would be costly, extensive, and not feasible; would require fencing entire rights-of-way. | Material issue for jury; Dr. Berg's testimony adequate to support finding that costs were slight and feasible. |
| Whether the court erred in refusing a special interrogatory about plaintiff's appreciation of risk at the time of the accident. | A properly framed question could have guided the verdict by isolating full risk appreciation. | Special interrogatory requested was improper as it sought a broader question than full risk appreciation. | The court properly refused because the proposed interrogatory was not in proper form and could not control the verdict. |
Key Cases Cited
- Kahn v. James Burton Co., 5 Ill.2d 614 (Ill. 1955) (duty for child trespassers measured by ordinary negligence; exception for known frequent dangers)
- Corcoran v. Village of Libertyville, 73 Ill.2d 316 (Ill. 1978) ( Restatement §339 framework for child-liability; duty to eliminate unreasonable risk to children)
- Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110 (Ill. 1995) (obvious danger exceptions; foreseeability of harm to child as test for duty)
- Briney v. Illinois Central R.R. Co., 401 Ill. 181 (Ill. 1948) (trespasser status; limited duty to avoid wilful or wanton harm; distinguishes older invitations theories)
- Cope v. Doe, 102 Ill.2d 278 (Ill. 1984) (attractive nuisance doctrine narrowed; modern negligence framework governs child injuries)
- Briney v. Illinois Central R.R. Co., 401 Ill. 181 (Ill. 1948) (trespasser doctrine; distinguishable from Kahn-era duty analysis)
- Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494 (Ill. 1967) (standard for directed verdicts and judgments notwithstanding the verdict)
- York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill.2d 147 (Ill. 2006) (de novo review of judgments notwithstanding verdicts)
- La Salle National Bank v. City of Chicago, 132 Ill.App.3d 607 (Ill. App. 1985) (illustrates open/obvious danger analysis in post-Kahn context)