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Defendants Are




Because There Appreciated

Is The

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).

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