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