(1st Dist. 2008). Whether “deposition testimony constitutes a judicial admission because
it is unequivocal is a question of law . . . considered de novo.” Elliott v. Indus. Comm’n,
303 Ill. App.3d 185, 187 (1st Dist. 1999). The admissibility of evidence and expert
testimony is reviewed for abuse of discretion. Todd W. Musburger, Ltd. v. Meier, 394 Ill.
App. 3d 781, 800-01 (1st Dist. 2009).
A new trial must also be granted “when the verdict is contrary to the manifest
weight of the evidence.” York, 222 Ill. 2d at 178. The denial of a motion for a new trial
on this basis is reviewed for abuse of discretion. Id. at 179.
SUMMARY OF ARGUMENT
While trespassing on railroad property, Choate tried three times to jump onto a
moving train in order to impress his girlfriend. His bravado ended with the loss of his
lower leg. While it is always unfortunate when a child is injured, Choate is not entitled to
recover from defendants.
With only narrow exceptions, landowners owe no duty of care to an undiscovered
child trespasser. “As in the case of adult trespassers, an owner or occupier of land owes
no duty to a trespassing child except not to willfully or wantonly injure him.” Mt. Zion
State Bank & Trust v. Consol. Commc’ns, Inc., 169 Ill. 2d 110, 116 (1995). “If no duty
exists, it is axiomatic that no recovery can occur.” Id. One of the exceptions to this “no
duty” rule is the Kahn doctrine, under which the plaintiff must show, inter alia, that the
condition that injured him was not one whose danger “children generally would be
expected to appreciate” (i.e., it was not an objectively obvious danger); the plaintiff did
not subjectively appreciate the danger of the condition; and the condition could have been
remedied at an expense that was “slight.” Id. at 117; Corcoran v. Vill. of Libertyville, 73
Ill. 2d 316, 326 (1978). Choate failed, as a matter of law, to satisfy any of these three