conclusively precluded liability to Choate, “not merely [as] a matter of contributory
negligence . . . but of lack of duty to the child.” Colls, 212 Ill. App. 3d at 934 (internal
quotation marks omitted); see also Mt. Zion, 169 Ill. 2d at 117-18.
Indeed, the circuit court had earlier recognized that it is “relevant to this case to
know what [Choate] was aware of at the time he hopped or mounted the train” (Tr. 904)
and that “the individual evaluation of the youngster to appreciate the danger” was
precisely why the motion for reconsideration had been granted to allow the case to “go to
the jury” (Tr. 2309). The trial court’s “refusal to submit” defendants’ tendered
interrogatory is “reversible error,” and requires a new trial. Van Hattem v. Kmart Corp.,
308 Ill. App. 3d 121, 132 (1st Dist. 1999).
Defendants Are Entitled To Judgment Because Choate Presented Insufficient Evidence That Defendants Could Have Prevented Trespassing Children From Jumping Onto Moving Trains.
Quite apart from the objective obviousness of the danger of moving trains and the
fact that Choate himself subjectively appreciated that danger, there was a “lack of
evidence to prove [another] necessary element of the [Choate’s] case” (York, 222 Ill. 2d
at 178)—namely, the requirement that “the expense and inconvenience of remedying the .
. . dangerous condition [be] slight when compared to the risk to children” (Mt. Zion, 169
Ill. 2d at 117; see Restatement (Second) of Torts §339(d)). Dr. Berg’s testimony was not
sufficient to establish this element of the Kahn test.
First, Dr. Berg assumed that it was sufficient to consider improvements only in
the area between Central and Ridgeland Avenues. But this reflected a mistakenly
circumscribed conception of the condition defendants ostensibly should have taken steps
to address, and “fail[ed] to take into consideration [Choate’s own] actions.” Damron v.
Micor Distrib., Ltd., 276 Ill. App. 3d 901, 909 (1st Dist. 1995). Consequently, Dr. Berg’s