X hits on this document





53 / 60

or to gratify some other childish desire.” Restatement (Second) of Torts § 339, cmt. i. But

what matters for purposes of liability under the Kahn exception is that the child can be

expected to (or does in fact) appreciate the risk, “not that he will in fact avoid it.”

Swearingen, 181 Ill. App. 3d at 369 (emphasis added).

Choate’s admission that he subjectively appreciated the danger of grabbing onto

moving trains should have been admitted as direct and “substantive” evidence that was

dispositive of the case. See In re Walter B., 227 Ill. App. 3d 746, 753 (1st Dist. 1992).

Defendants should not have been limited to using Choate’s admission only for

i m p e a c h m e n t p u r p o s e s . S e c . S a v . & L o a n A s s n v . C o m m n r o f S a v . & L o a n A s s o c s . , 7 7

Ill. App. 3d 606, 612 (3d Dist. 1979). Under Kahn, Choate’s recognition of the danger

vitiated any duty on the part of defendants towards him. As such, Choate’s admission to

that effect was plainly “at issue here.” See supra pp. 27-34; cf. Tr. 2244. Thus, it was all

the more indefensible for Choate to attempt to “create a factual dispute by contradicting

[his] previously made judicial admission.” Hansen, 155 Ill. App. 3d at 480. A party may

not water down or explain away a judicial admission either “with his own contrary

testimony” or with “that of other occurrence witnesses or experts.” Caponi, 236 Ill. App.

3d at 671. Yet that is what the trial court gave Choate free rein to do: Over defendants’

objection, Dr. Berg and Dr. Lencki offered testimony, which Choate latched upon to

argue that some minors might not recognize the danger of jumping on a moving train. Tr.

1246-47, 1479-80.10 This amplified the prejudicial effect of the trial court’s failure to

recognize Choate’s statement that he understood that danger for what it was: a

10 Similarly, Choate elicited testimony from some of his friends that the train might have been stopped part of the time. Tr. 785, 856, 935. Here too, Choate was not free to contradict his admission that the train was moving the entire time he was trying to jump onto it. Tr. 1638-39, 1734, 1766; D. Choate Dep. 78, 124, 194, 207 (A26, 28, 31-32).

  • -

    44 -

Document info
Document views205
Page views205
Page last viewedTue Jan 17 17:55:24 UTC 2017