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In sum, the evidence was overwhelming that Choate was aware that moving trains

are dangerous, and there is no admissible evidence that reasonably could support a

contrary finding. Thus, even if the danger were not deemed objectively obvious as a

matter of law to all children, Choate himself undoubtedly appreciated it. This “has

consistently been recognized as sufficient to free a defendant landowner of all liability for

the child’s injuries,” and the same result should obtain here. Colls, 212 Ill. App. 3d at

933. “[T]he purpose of a landowner’s duty under section 339 is not to protect children

from their own immature recklessness in the face of known and appreciated danger.”

Bonney, 800 F.2d at 279. Accordingly, defendants are entitled to judgment for this

independent reason.


At A Minimum, A New Trial Is Required Because The Trial Court Refused To Give A Special Jury Interrogatory On Choate’s Appreciation Of The Danger.

Even supposing that the evidence that Choate understood the danger of moving

trains was not sufficient to compel judgment n.o.v., the trial court erred in refusing to

propound to the jury the following special interrogatory proposed by defendants:

[A]t the time and place of Dominic Choate’s accident, did he appreciate that attempting to jump onto a moving freight train presented a risk of harm to him.

Tr. 1847. It is the function of a special interrogatory to serve “as a check on the jury’s

general verdict” by requiring the jury to make a determination as to a specific issue of

fact. Simmons v. Garces, 198 Ill. 2d 541, 563, 566 (2002). By statute, “[t]he jury . . . must

be required on request of any party, to find specially upon any material question . . . of

high-schooler or a junior-higher,” might not as readily appreciate it. Tr. 1452. In any event, Griffith, much like Dr. Berg, was not qualified to give competent testimony on such issues, and the trial court erred in not sustaining defendants’ objection to this entire line of questioning (Tr. 1447). See Nixon, 2007 WL 4190705, at *8.

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