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NATURE OF THE ACTION

At the time of the accident giving rise to this case, plaintiff Dominic Choate was

trespassing on railroad tracks owned or operated by defendants. He was injured in the

course of attempting to “flip” (i.e., intentionally jump on board) a moving freight train.

Choate, who was almost 13 at the time of the accident, brought suit on the theory that

defendants negligently failed to prevent him from jumping onto the moving train. The

circuit court initially granted summary judgment in defendants’ favor, but then reversed

itself on reconsideration. At trial, the jury found in favor of Choate on liability and

awarded damages in the amount of $6.5 million, which were reduced to $3.9 million to

account for a finding of 40% comparative fault. The trial court denied defendants’ post-

trial motions. No questions are raised on the pleadings.

ISSUES PRESENTED FOR REVIEW

  • 1.

    Whether defendants are entitled to judgment for the independent reasons that:

    • (a)

      attempting to jump on a moving train is an “open and obvious” danger

that a trespassing child such as Choate must be held to appreciate as a matter of law; and

(b)

there is no substantial dispute that Choate subjectively appreciated that

jumping on a moving train was dangerous.

2. Whether defendants are entitled to a new trial because the trial court

erroneously refused to give the special interrogatory tendered by defendants, which asked

the jury whether Choate appreciated that jumping on a moving train was dangerous.

3. Whether defendants are entitled to judgment because Choate failed to present

competent evidence of remedial measures, which defendants reasonably could have

implemented, that would have eliminated the danger that trespassing children would

jump on moving trains.

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