For generations, Illinois has recognized the general principle that a landowner owes no duty of reasonable care to trespassers. This duty is subject to a number of exceptions; one pertains to children. Since Kahn v. James Burton Co., Illinois has applied a three-step test to determining whether a duty is owed to a child trespasser: (1) the landowner knew or should have known that children habitually frequent the property; (2) a defective structure or dangerous condition was present; (3) the defective structure or dangerous condition was likely to injure children because they are incapable, based on age and maturity, of appreciating the risk; and (4) the expense and inconvenience of remedying the situation was slight compared to the risk.
The biggest question arising from this test is the third factor: which dangers are open and obvious, and who decides — the jury or the court? This past Thursday, the Illinois Supreme Court provided important guidance on these questions, handing down a unanimous decision in Choate v. Indiana Harbor Belt Railroad Co.
One day in the summer of 2003, plaintiff and five friends — two boys, three girls — met in the parking lot of an apartment building. The defendants’ railroad tracks ran adjacent to the lot. Only certain segments of a mile-long corridor passing along the parking lot were fenced, but a posted sign warned "Danger, No Trespassing."
A freight train approached, moving about ten miles per hour. The three boys approached the right of way, and plaintiff and another boy decided to jump onto the train. The plaintiff’s friend tried and failed. The plaintiff failed on his first two attempts. On his third, he fell from the train, which severed part of his foot. Ultimately, the plaintiff’s leg was amputated below the knee.
The plaintiff sued the defendant railroad, among others, alleging that the defendant failed to adequately fence the area, to take adequate steps to prevent minor children from approaching the trains, to post warning signs or to monitor the area.
The defendants moved for summary judgment, arguing that the dangers of a moving freight train are open and obvious to children of the plaintiff’s age, and that based on his deposition testimony, the plaintiff did, in fact, appreciate the danger. The Circuit Court initially granted the motion, but then changed its mind, concluding that obviousness was a question of fact for the jury. After the jury returned a multi-million dollar verdict for plaintiff, the defendants renewed their arguments in a motion for JNOV. The Appellate Court affirmed, holding that the danger from a moving train was not so obvious that a child of plaintiff’s age could be expected to appreciate it as a matter of law.
Choate received substantial attention before the Court, drawing amicus briefs from the Illinois Trial Lawyers Association for the plaintiff, and a joint amicus brief by the Association of American Railroads, the Chicago Transit Authority and the Northeast Illinois Regional Commuter Railroad Corporation for the defendants.
The Supreme Court reversed. The cornerstone of liability, according to the Court, was the foreseeability of harm. In this sense, Illinois law tracked Section 339 of the Restatement (Second) of Torts. As the Appellate Court had noted, early decisions both from the Illinois Appellate Court and from jurisdictions around the country had held that a moving train was an open and obvious danger for children, but the Appellate Court cited La Salle National Bank v. City of Chicago and Engel v. Chicago & North Western Transportation Co., both of which refused to extend the open and obvious doctrine to moving trains, as grounds for refusing to follow those authorities.
The Supreme Court overruled La Salle and Engel: "[W]e now explicitly recognize as a matter of law that a moving train is an obvious danger [such] that any child allowed at large should realize the risk of coming within the area made dangerous by it."
The Court noted conflicting testimony from the plaintiff about whether or not he appreciated the danger, but emphasized that the appropriate test was an objective one for the court to apply, not a subjective one for the jury: the issue was what a landowner could reasonably expect a child to foresee.
In closing, the Court briefly addressed the final factor of the test for duty, whether the burden of adding additional fencing was slight compared to the risk. The Court rejected any notion that the burden was slight, since if a landowner had a duty to fence at the location of an accident, it necessarily had to fence everywhere.