accident. Tr. 730, 1680, 1734.
Choate’s left leg was partially severed, necessitating a below-the-knee
amputation. Choate’s postoperative course was generally “normal” (Tr. 1009, 1022,
1141, 1699), and in late 2003 he received a prosthetic limb (Tr. 1145).
The Danger Of Moving Trains.
Choate’s knowledge of the risks. Choate was born on October 14, 1990,
making him 12 years and 9 months old on July 30, 2003. Tr. 1662. Although Choate was
not a standout student (e.g., he received Bs and Cs), he passed all the grades that he
attended in school and scored in the low average to average range on an intelligence test
administered by a school psychologist, Dr. Richard Lencki. Tr. 1479-80, 1763.
Choate was well aware at the time of the accident that jumping on moving trains
was dangerous. He admitted in his deposition that he recognized “on the day of the
accident” that the “train that [he was] grabbing onto was dangerous,” although he tried to
retreat from that position at trial by asserting that he “didn’t know” that it was dangerous
“while [he] was doing it.” Tr. 1758, 1762; D. Choate Dep. 127-28 (A29). Choate defined
“dangerous” things as things that “could take a body part” or “hurt” or “kill” him (Tr.
1757; D. Choate Dep. 28-29 (A22-23))—apt descriptions for a moving train.
Choate’s mother had warned Choate on many occasions that moving trains were
dangerous, enlivening those warnings with an anecdote about “somebody that [she] knew
from [her] childhood” who had lost both of his legs in a train accident. Tr. 1628, 1634-36.
Seven months before the accident, on November 7, 2002, Choate had been caught
trespassing on defendants’ right-of-way by an IHB patrolman, warned that “he could get
hurt on railroad property,” and told never to come back. Tr. 1409-10, 1724; DX21. His
mother was sent a warning letter, which prompted her to remind him that he was “going