fact.” 735 ILCS 5/2-1108. The word “must” is mandatory, and leaves the trial court with
“no discretion to reject a special interrogatory which is proper in form.” Morton v. City of
Chi., 286 Ill. App. 3d 444, 451 (1st Dist. 1997).
In this case, the special interrogatory tendered by defendants was surely “proper
in form” in that “(1) it relate[d] to an ultimate issue of fact . . . , and (2) an answer
responsive thereto [would be] inconsistent” with a general verdict in Choate’s favor.
Simmons, 198 Ill. 2d at 563. It “focused on one element”—Choate’s subjective
appreciation of the dangerousness of moving trains—that was “dispositive of [his]
claim.” Snyder v. Curran Twp., 281 Ill. App. 3d 56, 60 (4th Dist. 1996). And the jury’s
determination of that issue in defendants’ favor would be “inconsistent with [a] general
verdict” of liability (Simmons, 198 Ill. 2d at 563), because landowners have no liability to
“a child who in fact discovers the condition and appreciates the full risk involved, but
none the less chooses to encounter it out of recklessness or bravado.” Colls, 212 Ill. App.
3d at 933 (internal quotation marks omitted).
Choate’s argument below that the jury’s consideration of comparative fault
obviated the need for this special interrogatory was misguided. As LaSalle explained,
comparative fault is no substitute for a “specific finding that plaintiff ‘appreciated the
risk’ in jumping on a moving freight train” 132 Ill. App. 3d at 615. “[C]omparative
negligence . . . performs a separate and distinct role from an appreciation of risk
determination.” Colls, 212 Ill. App. 3d at 948. When the plaintiff “in fact discovers the
condition and appreciates the full risk involved,” the landowner is freed “of all liability
for the child’s injuries.” Id. at 933; Hagy, 190 Ill. App. 3d at 840; Swearingen, 181 Ill.
App. 3d at 362. Thus, the resolution of this issue in defendants’ favor would have