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so would have been by completely sealing off the right-of-way and erecting overpasses at

every crossing. Dr. Berg, Choate’s purported expert, offered no competent evidence

supporting the feasibility of such measures. That is reason enough to reverse the decision

below and order the entry of judgment. See infra pp. 34-42.

Finally, the proceedings below were marred by a host of evidentiary rulings that

excluded plainly material evidence offered by defendants and denied Choate’s

admissions their proper, dispositive effect, while giving Choate broad latitude to

introduce unsupported and irrelevant testimony. See infra pp. 42-49. A new trial is

warranted on account of these errors, and also because this counterintuitive verdict was

against the manifest weight of the evidence.



Defendants Owed No Duty To Choate Because He Reasonably Could Have Been Expected To Appreciate, And Did In Fact Appreciate, That Jumping Onto A Moving Train Is Dangerous.

Kahn provides only a narrow exception to the general rule that a landowner owes

no duties to a trespassing child. Under Kahn, a duty of reasonable care is imposed when:

(1) the owner or occupier of the land knew or should have known that children habitually frequent the property; (2) a defective structure or dangerous condition was present on the property; (3) the defective structure or dangerous condition was likely to injure children because they are incapable, because of age and maturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition was slight when compared to the risk to children.

Mt. Zion, 169 Ill. 2d at 117. As with any other part of the plaintiff’s prima facie case, the

child seeking recovery bears the burden of proving that each of these elements is

satisfied. Colls, 212 Ill. App. 3d at 924; see also Corcoran, 73 Ill. 2d at 328.

Kahn—which “brought Illinois law into harmony with section 339 of the

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