Choate v. Indiana Harbor Belt R.R. Co.Choate v. Indiana Harbor Belt R.R. Co.
Supreme Court
Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant railroads had no legal duty to a 12-year-old trespasser who was injured when he attempted to jump on a moving train, and the issue of duty should not have been sent to the jury—plaintiff‘s verdict reversed.
Judgment
Judgments reversed.
Milo W. Lundblad and Marvin Brustin, of Brustin & Lundblad, Ltd., of Chicago (Leslie J. Rosen, of counsel), for appellee.
Hugh C. Griffin, of Hall, Prangle & Schoonveld, LLC, of Chicago (Louis P. Warchot and Daniel Saphire, of Washington, D.C., of counsel), for amici curiae Association of American Railroads et al.
Rachel Kaplan and Stephen Wood, of Chicago, for amicus curiae Chicago Transit Authority.
Richard J. Rosenblum, of Rubin, Machado & Rosenblum, Ltd., of Chicago, for amicus curiae Illinois Trial Lawyers Association.
OPINION
¶ 1 Plaintiff, Dominic Choate, brought a personal injury action in the circuit court of Cook County against defendants, Indiana Harbor Belt Railroad Company (IHB), the Baltimore and Ohio Chicago Terminal Railroad Company (B&OCT), and CSX Transportation, Inc. (CSX). A jury returned a verdict in favor of plaintiff. The appellate court affirmed. 2011 IL App (1st) 100209. We allowed defendants’ petition for leave to appeal.
2 I. BACKGROUND
3 A. Underlying Facts
¶ 4 In July 2003, plaintiff was 12 years and 9 months old, and had finished the sixth grade. Plaintiff lived in Chicago Ridge. CSX, which wholly owns B&OCT, owns three railroad tracks that run northwest to southeast through Chicago Ridge. IHB manages the tracks and patrols the railroad right-of-way.
¶ 6 Defendants’ railroad tracks lie adjacent to the north side of the parking lot. There was no railroad crossing at that location. The nearest crossings were at Ridgeland Avenue, approximately three-quarters of a mile northwest, and Central Avenue, approximately one-quarter of a mile southeast. Only segments of this mile-long corridor were fenced. On the north side of the tracks at the parking lot, a chain link fence was torn open and rolled back to enable people to walk through it to cross the tracks. On the south side of the tracks, a chain link fence ended east of the parking lot. A sign posted on the west end of this fence read as follows:
“DANGER
NO
TRESPASSING
NO
DUMPING”
According to his testimony, plaintiff did not see this sign on July 30, 2009.
¶ 7 Plaintiff further testified that while the group was gathered in the parking lot, a freight train approached on the middle track. The train was moving eastbound, from their left to their right, steadily at approximately 10 miles per hour and never stopped. According to plaintiff, the group originally intended to wait for the train to pass, and cross the tracks to reach Weyer‘s house. However, after a few minutes, plaintiff, Spindler, and Weyer began walking toward the tracks. They stepped onto the railroad right-of-way. Plaintiff and Spindler decided on the spur-of-the-moment to jump onto the train. Plaintiff had never before attempted to jump aboard a moving train, and he had never seen anyone successfully do so. At that point, plaintiff‘s motive for jumping on the train was not to cross the tracks to go anywhere else. Rather, plaintiff was focused solely on trying to impress his friends, especially Van Witzenburg, his girlfriend at that time.
¶ 8 Plaintiff testified that Spindler attempted to jump onto the train first. Spindler tried to grab a ladder on the side of a moving boxcar, but he was unsuccessful and stepped away from the train. Plaintiff then attempted to jump onto the train three times. On his first attempt, plaintiff stood flat-footed on the ground and grabbed a ladder. At the time, he was only approximately 4 feet 10 inches tall. He was able to grab the bottom rung of the ladder with his right hand. However, the ladder bent his fingers backwards and he pulled his hand back. On his second attempt, plaintiff ran alongside the train and grabbed a ladder. However, his shoes began to slip on the rocky roadbed, forcing him to let go. On his third attempt, plaintiff grabbed hold of a ladder with both hands and pulled his body up toward the train. He managed to put his right foot on the ladder. Plaintiff testified that he does not recall what happened next while he was on the train.
¶ 9 Edgar and Gunderson each testified that the girls were screaming at plaintiff to stop what
¶ 10 Plaintiff remembered waking up on the ground and trying unsuccessfully to stand. Plaintiff‘s left foot had been severed above the toes.
¶ 11 Austin Patton testified that he saw the children in the parking lot, shortly before the accident. Patton testified that he watched as the boys approached the moving train. One of the boys tried to grab a ladder on the side of a boxcar, but he was knocked down and made no further attempt to jump on the train. The other boy, whom Patton identified as plaintiff, continued trying to jump on the train. Patton saw plaintiff‘s one hand lose its grip on the ladder, such that the moving train “swung him [plaintiff] around so his back was to the train. He went down and his—his foot went up over that rail.”
¶ 12 Patton was approximately 50 feet from plaintiff and Spindler when they began their attempts to jump on the train. Patton yelled at the boys to stay away from the tracks, but the train was so loud they could not hear him.1 Patton testified: “So as I‘m making my way towards him is when—is when I saw what happened.” Patton ran over and pulled plaintiff away from the moving train. Patton saw that plaintiff “lost the tip of his foot at an angle.” He instructed a friend who was with him to run back to his apartment, telephone 911, and bring back towels. Patton elevated plaintiff‘s leg, covered it with the towels, and flagged down a nearby ambulance.
¶ 13 Dr. Andrea Kramer, plaintiff‘s orthopedic surgeon, testified that plaintiff‘s injury necessitated an amputation below the knee, rather than closer to the ankle, because “there was no skin left on his heel or his foot, so it was the best option.”
B. Procedural Background
¶ 15 On March 16, 2005, plaintiff filed the instant second amended complaint. Plaintiff alleged, inter alia, that defendants failed to: adequately fence the area; prevent minor children from accessing trains or the railroad tracks; post warning signs, or otherwise warn of the danger of trains; and monitor the area in the vicinity of the train and railroad tracks to prevent children from gaining access thereto.
¶ 17 The trial adduced the above-recited evidence. The jury returned a verdict in favor of plaintiff. The jury assessed plaintiff‘s damages in the amount of $6.5 million, but reduced that amount to $3.9 million after finding that plaintiff was 40% comparatively negligent. The circuit court subsequently entered judgment on the verdict in the amount of $3,875,000.2
¶ 18 Defendants timely filed a posttrial motion pursuant to
¶ 19 Defendants appeal to this court. We granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. We also granted the Association of American Railroads, the Chicago Transit Authority, and the Northeast Illinois Regional Commuter Railroad Corporation (Metra) leave to submit an amici curiae brief in support of defendants.
II. ANALYSIS
¶ 21 Defendants contend that they are entitled to a judgment n.o.v., which is properly granted only where all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). An adverse ruling on a motion for a judgment n.o.v. is reviewed de novo. Evans v. Shannon, 201 Ill. 2d 424, 427 (2002). In other words, the reviewing court applies the same Pedrick standard as did the circuit court. Harris v. Thompson, 2012 IL 112525, ¶ 15.
¶ 22 Defendants contend that they are entitled to a judgment n.o.v. because they had no duty to protect against the possibility that plaintiff might injure himself confronting an obvious danger. To succeed in an action for negligence, the plaintiff must establish that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach proximately caused injury to the plaintiff. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d
A. Premises Liability: No Duty to Trespassers
¶ 24 Pursuant to the theory of premises liability, an owner or occupier of land (hereafter landowner) owes a duty of reasonable care under the circumstances to all entrants upon the premises except to trespassers. Rhodes, 172 Ill. 2d at 227-28. In the case at bar, the parties agree that plaintiff, Spindler, and Weyer became trespassers when they stepped onto the railroad right-of-way. See
¶ 25 At common law, the general rule is that a landowner is under no duty to maintain the premises for the safety of trespassers, whether they are adults or children. Kahn v. James Burton Co., 5 Ill. 2d 614, 625 (1955); Darsch v. Brown, 332 Ill. 592, 595-96 (1928). Indeed, a landowner owes no duty of reasonable care to adult or child trespassers, except to refrain from willfully and wantonly injuring them. Mt. Zion State Bank, 169 Ill. 2d at 116; see Marcovitz v. Hergenrether, 302 Ill. 162, 167 (1922).3 This general rule applies when the premises is a railroad right-of-way. See Illinois Central R.R. Co. v. Eicher, 202 Ill. 556, 560 (1903); Benamon v. Soo Line R.R. Co., 294 Ill. App. 3d 85, 89 (1997); Hocking v. Duluth, Missabe & Iron Range Ry. Co., 117 N.W.2d 304, 309-10 (Minn. 1962) (“It has never been the rule that a railway company is required to make its land, rights-of-way, tracks, and trestles a safe playground for children. *** The railway company is not an insurer of the lives or limbs of children who may stray or play upon its premises.“).
1. Child Trespasser Exception
¶ 27 Courts have recognized a number of exceptions to the rule of no duty of reasonable care
¶ 28 Kahn established the foreseeability of harm to children as the cornerstone of liability. Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 325-26 (1978); Kahn, 5 Ill. 2d at 625. Where the above elements are satisfied, harm to children is deemed sufficiently foreseeable for the law to impose a duty of reasonable care upon the landowner. Corcoran, 73 Ill. 2d at 326. Also, Kahn “brought Illinois law into harmony with section 339 of the Restatement (Second) of Torts.” Id. (citing
Obviousness of Danger
¶ 30 At several junctures in the case at bar, including defendants’ posttrial motion, defendants contended that whether the danger of the moving train was obvious to plaintiff was a matter of law for the circuit court to decide. However, the court rejected this contention whenever it was raised. For example, rejecting defendants’ motion for a directed verdict at the close of plaintiff‘s case in chief, the court stated: “The jury is going to make that determination.” In affirming the judgment of the circuit court, the appellate court held that plaintiff‘s act of jumping aboard a slow-moving freight train was not an obvious danger that children of plaintiff‘s general age and experience can be expected to appreciate as a matter of law. Rather, the court held that the issue was one of fact for the jury to determine. 2011 IL App (1st) 100209, ¶ 59.
¶ 31 We disagree. This court has repeatedly explained that a landowner has a duty to remedy a dangerous condition on the premises where the condition is likely to cause injury to the general class of children who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. Cope v. Doe, 102 Ill. 2d 278, 286 (1984); Corcoran, 73 Ill. 2d at 326. However, it is equally settled that a landowner has no duty to remedy a dangerous condition if it presents obvious risks that children generally of the plaintiff‘s age would be expected to appreciate and avoid. This court has reasoned: “since children are expected to avoid dangers which are obvious, there is no reasonably foreseeable risk of harm. The law then is that foreseeability of harm to the child is the test for assessing liability; but there can be no recovery for injuries caused by a danger found to be obvious.” Cope, 102 Ill. 2d at 286; accord Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229, 236-37 (1990); Corcoran, 73 Ill. 2d at 326. While certainly there are latent dangers that children
¶ 32 “In Illinois, obvious dangers include fire, drowning in water, or falling from a height.” (Emphasis added.) Mt. Zion State Bank, 169 Ill. 2d at 118 (collecting authorities). We observe that this is not an exclusive list. Rather, there are “many dangers *** which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.” (Emphasis added.)
¶ 33 In the case at bar, the appellate court acknowledged the above-cited persuasive authority, but was not guided by it because the court considered La Salle National Bank v. City of Chicago, 132 Ill. App. 3d 607 (1985), and Engel v. Chicago & North Western Transportation Co., 186 Ill. App. 3d 522 (1989), to be dispositive. 2011 IL App (1st) 100209, ¶¶ 51, 60. In each case, the appellate court affirmed a jury verdict in favor of a minor plaintiff despite the defendant‘s contention that hopping a moving train was dangerous as a matter of law. In Engel, the court reasoned: “The policy determination that most children are presumed to know the risks of injury inherent in certain types of activities, such as playing with fire or playing in bodies of water, does not per se extend to the train-flipping cases.” Engel, 186 Ill. App. 3d at 531. In La Salle, the court simply reasoned that “the jury made no specific finding that plaintiff ‘appreciated the risk’ in jumping on a moving freight train.” La Salle, 132 Ill. App. 3d at 615.
¶ 34 We note that the reasoning expressed in La Salle and Engel is inconsistent with the principles enunciated by this court in both Cope and Corcoran. In any negligence action, the court must first determine as a matter of law whether the defendant owed a duty to the plaintiff. See Iseberg, 227 Ill. 2d at 87; Anderson v. Woodlawn Shell, Inc., 132 Ill. App. 3d
¶ 35 Corcoran and Cope were controlling authority when the appellate court decided La Salle and Engel. If a ditch, as in Corcoran, 73 Ill. 2d at 328, and a partially frozen retention pond, as in Cope, 102 Ill. 2d at 289, presented obvious dangers that children generally would be expected to recognize, then surely “‘the noise and appearance of a huge, rumbling, string of railroad cars‘” is such an obvious danger. See McKinney, 510 N.E.2d at 389-90; Holland, 431 A.2d at 603 (both quoting Herrera v. Southern Pacific Ry. Co., 10 Cal. Rptr. 575, 580 (Cal. Dist. Ct. App. 1961)). This court long ago recognized that Kahn and its progeny harmonized Illinois law with the general principles expressed in section 339 of the Restatement (Second) of Torts. Corcoran, 73 Ill. 2d at 326. Persuaded by the Fitzgerald and LeBeau decisions of our appellate court, in harmony with the majority of jurisdictions, we now explicitly recognize as a matter of law that a moving train is an obvious danger that any child allowed at large should realize the risk of coming within the area made dangerous by it. La Salle National Bank v. City of Chicago, 132 Ill. App. 3d 607 (1985), and Engel v. Chicago & North Western Transportation Co., 186 Ill. App. 3d 522 (1989), are hereby overruled.
¶ 36 We observe that during his case in chief, plaintiff testified as follows:
“Q. Now, while you were standing there grabbing for these [boxcar] ladders, what was going through your mind?
A. I thought that I was going to get on the train, ride it for a couple of feet, and then I was going to get off, and everything would be fine.”
On redirect, plaintiff was asked: “And as you stood there, did you have any thought that you might lose your leg as a result of grabbing on that ladder?” Plaintiff answered: “Not a thought whatsoever.”
¶ 37 Based on this and other testimony, the appellate court reasoned that the record contained conflicting evidence as to whether plaintiff appreciated the full risk of harm at the time he was injured, thereby precluding a judgment n.o.v. in favor of defendants. 2011 IL App (1st) 100209, ¶¶ 65-66.
¶ 38 We disagree. This court has explained as follows:
“The issue in cases involving obvious dangers, like fire, water or height, is not whether the child does in fact understand, but rather what the [landowner] may reasonably expect of him. [Citations.] The test is an objective one, grounded partially in the notion that parents bear the primary responsibility for the safety of their children. Stated again, where a child is permitted to be at large, beyond the watchful eye of his parent, it is reasonable to expect that that child can appreciate certain particular dangers.” (Emphasis in original.) Mt. Zion State Bank, 169 Ill. 2d at 126-27.
Further, knowledge of the obvious danger, or appreciation of the risk, does not require the clairvoyance to foresee the precise injury which in fact occurred. See Shull v. Harristown Township, 223 Ill. App. 3d 819, 826-27 (1992); Alston v. Baltimore & Ohio R.R. Co., 433 F. Supp. 553, 569 n.102 (D.D.C. 1977).
¶ 39 It has never been part of our law that a landowner may be liable to a trespasser who proceeds to wantonly expose himself to unmistakable danger in total disregard of a fully understood risk, simply for the thrill of the venture. Alston, 433 F. Supp. at 570. We conclude that the third element of the child trespasser exception to the no-duty rule has not been satisfied.
Expense of Remedying Dangerous Condition
¶ 41 We complete our analysis of defendants’ duty to plaintiff by considering whether the expense and inconvenience of remedying the dangerous condition is slight when compared to the risk to children. Mt. Zion State Bank, 169 Ill. 2d at 116-17; Kahn, 5 Ill. 2d at 625; accord
¶ 42 We disagree. Again, the existence of a duty “is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. It is no part of the province of a jury ***.” W. Page Keeton et al. eds., Prosser and Keeton on Torts § 37, at 236 (5th ed. 1984). This issue is an element of the analysis recognized by Kahn and its progeny, in accord with section 339 of the Restatement (Second) of Torts. If the test is satisfied, a duty of reasonable care to a trespassing child is imposed on a landowner. Absent this, the landowner owes no such duty. Again, this duty determination is a question of law for the court and not for a jury. Mt. Zion State Bank, 169 Ill. 2d at 116.
¶ 43 Courts have generally answered in the negative the question whether the expense and inconvenience of remedying this dangerous condition is slight when compared to the risk to
¶ 44 We reach this conclusion even considering plaintiff‘s own testimony. Plaintiff and his friends paid no attention to the existing fence segments; they paid no attention to the posted warning sign; they were not even trying to get to the other side of the tracks. Rather, plaintiff admitted that he was trying to impress his friends. No fence would have prevented such bravado. See, e.g., Nolley v. Chicago, Milwaukee, St. Paul & Pacific R.R., 183 F.2d 566, 569 (8th Cir. 1950).
¶ 45 In sum, because plaintiff was a trespasser, defendants owed him no duty of reasonable care, except to refrain from willfully and wantonly injuring him, which plaintiff does not allege. Because plaintiff was a child, Kahn and its progeny provide an exception to the “no duty” rule, and would impose on defendants a duty of reasonable care toward plaintiff, if its required elements were satisfied. This determination of defendants’ duty is a question of law for the court; the circuit and appellate courts committed reversible error in viewing defendants’ duty to plaintiff as an issue of fact for the jury to determine. We hold that this exception is not available to plaintiff. It is always unfortunate when a child gets injured while playing, but the responsibility for a child‘s safety lies primarily with his parents, whose duty it is to see that the child does not endanger himself. Driscoll v. C. Rasmussen Corp., 35 Ill. 2d 74, 79 (1966). Thus, as a matter of law, defendants did not owe plaintiff a duty.
¶ 46 Because defendants did not owe plaintiff a legal duty, we hold that they were entitled to a judgment n.o.v. See Washington, 188 Ill. 2d at 238-39. Therefore, the judgments of the appellate and circuit courts are reversed without remand. See Harris, 2012 IL 112525, ¶ 26. Accordingly, we need not address defendants’ alternative contention that they are entitled to a new trial.
III. CONCLUSION
¶ 48 For the foregoing reasons, the judgments of the appellate court and the circuit court of Cook County are reversed.
¶ 49 Judgments reversed.
¶ 51 Although I initially joined in the opinion in this case, I believe that plaintiff presents arguments in his petition for rehearing that warrant this court‘s consideration. In particular, I agree with plaintiff‘s contention that the opinion contravenes the public policy established by this court in Kahn v. James Burton Co., 5 Ill. 2d 614 (1955).
¶ 52 In Kahn, this court recognized the general rule that a landowner has no duty to keep the property safe for trespassers of any age. Nonetheless, we recognized in Kahn an exception to this rule that applied to trespassers who are children when the property contained a dangerous structure or condition. Specifically, this court held that the law imposes a duty on a landowner “to exercise due care to remedy the [dangerous] condition or otherwise protect the children from injury resulting from it.” Kahn, 5 Ill. 2d at 625.
¶ 53 The child trespasser exception recognized by this court in Kahn is applicable when: (1) a landowner knows, or should know, that children habitually frequent the property; (2) a defective structure or dangerous condition exists on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable of appreciating the risk involved based on their age and immaturity; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight compared to the risk to children. Ultimately, this court explained that the rationale underlying the child trespasser exception, and therefore justifying the imposition of liability on the landowner for a child trespasser‘s injuries, is “the foreseeability of harm to the child.” Kahn, 5 Ill. 2d at 625.
¶ 54 In a later decision, we reiterated that Kahn “established the foreseeability of harm to children as the cornerstone of liability.” Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 325-26 (1978). Subsequently, the child trespasser exception, grounded in the foreseeability of harm to children, has become settled law in Illinois. Corcoran, 73 Ill. 2d at 325; Feldscher v. E&B, Inc., 95 Ill. 2d 360 (1983); Cope v. Doe, 102 Ill. 2d 278 (1984); Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110 (1995).
¶ 55 In this case, it is undisputed that plaintiff was a child trespasser and that defendant‘s property contained a dangerous condition, namely, a moving train. Thus, a straightforward application of Kahn means that defendant had a duty to “to exercise due care to remedy the condition or otherwise protect [plaintiff] from injury resulting from it.” Kahn, 5 Ill. 2d at 625.
¶ 56 The court‘s decision here, however, reaches the opposite conclusion. It concludes, inter alia, that defendant owed plaintiff no duty, and holds, for the first time by this court, that a moving train is a per se obvious danger that poses a risk that any child allowed at large should appreciate. Supra ¶¶ 35-36.
¶ 57 In my opinion, as plaintiff argues in his petition for rehearing, this court‘s holding is clearly erroneous under the undisputed facts of this case and contradicts our core holding in Kahn—the basis for imposing liability under the child trespasser exception is “the foreseeability of harm to the child.” Kahn, 5 Ill. 2d at 625; Corcoran, 73 Ill. 2d at 325-26. Here, the uncontested facts establish that defendant railroad company knew that children, including the plaintiff, were regularly and repeatedly trespassing on its property. These
¶ 58 Although Illinois law exempts landowners from protecting child trespassers from obvious risks and dangers on the property, until this decision, this court recognized only three per se examples of an obvious danger—fire, drowning in water, and falling from a height. Supra ¶ 32 (citing Mt. Zion State Bank, 169 Ill. 2d at 118). After considering the facts of this case, I no longer believe that this court should add a moving train to that list.
¶ 59 I emphasize that defendant here had actual knowledge that children were trespassing on its property and interacting with moving trains. On these facts, how can this court possibly conclude that defendant could not foresee harm to children? If Kahn‘s recognition of the child trespasser exception is truly based on “foreseeability of harm” to children, this court must reconsider its decision here.
¶ 60 There are countless miles of railroad tracks in Illinois, including commuter lines in our densely populated urban and suburban areas. Our decision here effectively absolves landowners of any liability when trespassing children are injured by a moving train on their property, even when the landowner has actual knowledge of the situation. In other words, landowners are now free to ignore completely trespassing children who may be subjecting themselves to serious physical harm through foolish interactions with a moving train.
¶ 61 The opinion claims that “we now explicitly recognize as a matter of law that a moving train is an obvious danger that any child allowed at large should realize the risk of coming within the area made dangerous by it,” but that statement leaves many unanswered questions. What constitutes a “moving” train under our new rule? Does it matter how fast or how slow the train is moving? What if the train is moving only one mile per hour and a child is hurt while trying to “beat the train” across the tracks?
¶ 62 Furthermore, what does the phrase “any child allowed at large” mean? Does it only apply to minors under 18? What about individuals, children or adults, with limited mental capacity or mental health issues? Does our holding mean that children who are allowed to roam outside by negligent parents no longer have any protection under the law for open and obvious dangers?
¶ 63 Finally, what is to limit an extension of this decision to other moving objects that pose obvious dangers, such as moving trucks, buses, or other vehicles? All of these unanswered questions reveal that the issue in this case is more complicated that I initially thought and should not be subject to a bright-line rule. In addition, by ignoring undisputed evidence that the property owner had actual knowledge that children were trespassing and subjecting themselves to harm from a moving train, this court‘s decision here contradicts the foundation of our holding in Kahn that focused on “foreseeability of harm to children.”
¶ 64 Ultimately, these concerns suggest to me that, as the lower courts similarly concluded, the question of whether a moving train is an open and obvious danger, thereby precluding a finding of a legal duty, presents too many potential complicated factual scenarios for this