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against trespassing children.

Choate’s protestations to the contrary notwithstanding, Engel and LaSalle offer no

real guidance for the proper resolution of the issues before this Court. This Court should

reaffirm, in accord with LeBeau, Briney, and the great weight of authority, that a moving

train presents an objectively obvious danger to children old enough to be at large without

adult supervision.

2. If the Court agrees that the risk of jumping onto a moving train is objectively

obvious as a matter of law, then the absence of a duty to the trespassing child is

conclusively established, because landowners are “free to rely” upon the “assumption that

any child old enough to be allowed at large by his parents will appreciate certain obvious

dangers.” Mt. Zion, 169 Ill. 2d at 117. As the Mt. Zion Court forcefully “retiterat[ed],

obvious dangers present no foreseeability of harm, and thus no duty.” Id. at 125. What

counts as an “obvious” danger is ultimately a matter of public policy, to be “resolved by

the court,” like any other legal issue embedded in the determination of whether a duty

exists. Id. at 116-17, 122; Cope, 102 Ill. 2d at 286.

Once the court has concluded that the danger is obvious as a matter of law, there

can be no duty to the child trespasser. Whether the particular plaintiff before the court

allegedly was incapable of appreciating the risk is beside the point. As a matter of public

policy, it “would place an undue burden on landowners to focus on a minor’s subjective

inability to appreciate a risk where such inability was less than a typical minor.”

Swearingen v. Korfist, 181 Ill. App. 3d 357, 362 (2d Dist. 1989) (emphasis added); see

also Salinas, 189 Ill. App. 3d at 61 (“[O]ur courts do not consider the subjective

understandings and limitations of the child when a risk is deemed obvious to children

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