Because There Appreciated
Dangerousness Of Jumping Onto A Moving Train.
Choate’s actual understanding becomes relevant only if the Court concludes that
moving trains are not objectively an obvious danger to the general class children of
Choate’s age and experience—i.e., those 12 to 13 years old who are sufficiently mature
to be at large, unsupervised by their parents. In that event, defendants still are entitled to
judgment, because the evidence (including Choate’s admissions) permits only one
reasonable conclusion—that Choate himself subjectively understood the danger, and
nonetheless consciously embraced it. This is a case in which “the evidence, when viewed
in its aspect most favorable to [Choate], so overwhelmingly favor[ed]” defendants that
the verdict cannot stand. Lazenby, 236 Ill. 2d at 100 (internal quotation marks omitted).
Notwithstanding the “usual objective nature of the court’s duty analysis, . . .
consideration of the particular minor plaintiff’s knowledge is appropriate where the
minor has some greater understanding of the alleged dangerous condition.” Hagy v.
McHenry County Conservation Dist., 190 Ill. App. 3d 833, 840 (2d Dist. 1989) (emphasis
added). “[T]he particular child’s appreciation of the risk, if established in fact, has
consistently been recognized as sufficient to free a defendant landowner of all liability for
the child’s injuries.” Colls, 212 Ill. App. 3d at 933; see also Swearingen, 181 Ill. App. 3d
is never a “reasonabl[y] foreseeable risk of harm” when a child trespasser is injured by an obvious danger, so the trespasser cannot, as a matter of law, “recover for injuries caused by a danger found to be obvious.” Cope, 102 Ill. 2d at 286; see Mt. Zion, 169 Ill. 2d at 117, 125. “The critical distinction between the facts in this case and the facts” in cases that have looked beyond the obviousness of the danger is that “the injured children in those cases were invitees, whereas the injured child in this case was a trespasser.” Porter v. Union Elec. Co., 2009 WL 3065150, at *2 n.18 (S.D. Ill. Sept. 23, 2009). In sum, even if the “general rule of no liability for open and obvious conditions” has in some respects been relaxed for individuals “lawfully on [the defendant’s] premises,” that is not the case when the “[p]laintiff . . . was a trespasser.” Lange v. Fisher Real Estate Dev. Corp., 358 Ill. App. 3d 962, 972 (1st Dist. 2005) (second emphasis added).