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Restatement (Second) of Torts”—does not “impose a duty on owners or occupiers to

remedy conditions the obvious risks of which children generally would be expected to

appreciate.” Corcoran, 73 Ill. 2d at 326. Therefore, even when the landowner knows that

“children frequent his premises, he is not required to protect against the ever-present

possibility that children will injure themselves on obvious or common conditions.” Id.

The rationale for this rule is simple: Because “children are expected to avoid dangers

which are obvious, there is no reasonably foreseeable risk of harm” from obvious

dangers, and it follows that “there can be no recovery for injuries caused by a danger

found to be obvious.” Cope, 102 Ill. 2d at 286. As the Restatement explains, “[t]he duty

of the possessor . . . does not extend to those conditions the existence of which is obvious

even to children.” Restatement (Second) of Torts § 339, cmt. i.

Choate failed to establish the third element of the Kahn exception for two reasons.

First, as a matter of law, trying to hitch a ride on a moving train presents an open and

obvious risk of harm to the general class of children of Choate’s age and experience. See

infra pp. 19-26. Second, even if a moving train is not an objectively obvious danger for

such children, the evidence was overwhelming that Choate subjectively appreciated that

danger, which “has consistently been recognized as sufficient to free a defendant

landowner of all liability” to the plaintiff. Colls, 212 Ill. App. 3d at 933-34. This

conclusion is mandated not “merely a matter of contributory negligence,” but rather

because of a “lack of duty” on the part of defendants to a child who, like Choate,

appreciated the danger. Mt. Zion, 169 Ill. 2d at 117-18 (internal quotation marks omitted).

See infra pp. 27-32.


Defendants Are Entitled To Judgment Because A Moving Train Presents An Open And Obvious Danger That Children Of Choate’s

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