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conclusively binding judicial admission.


The Trial Court Erred In Excluding Testimony That Choate’s Companions Recognized The Dangerous Of Jumping On Moving Trains, While Admitting Testimony About Unrelated Train-Hopping Incidents Of Which Choate Had No Awareness.

Defendants’ offers of proof established that Choate’s companions, who were

similar in age and experience to Choate himself, all appreciated that jumping onto a

moving train was dangerous. Tr. 804 (Spindler), 832 (Weyer), 865 (Van Witzenburg),

888 (Edgar), 953 (Gunderson). The trial court refused to admit this evidence, reasoning

that their testimony would not be relevant to either what a child of Choate’s age and

experience could be expected know or Choate’s own state of mind. Tr. 219, 796. That

ruling was erroneous. The testimony of Choate’s friends, who “fully appreciated the

dangerousness of ‘train hopping,’” is probative of both points. Alston, 433 F. Supp. at

569 n.102. Uniformly, the other “children who were [in the vicinity] when [Choate] was

injured” testified that they appreciated the danger, which makes it “clear that a child of

[Choate’s] age would have realized the danger presented” and supports the conclusion

that Choate “did in fact appreciate the risks involved.” Griffin v. Knott, 2000 WL 15026,

at *6 (Wash. Ct. App. Jan. 10, 2000); see also Foster-Smith v. Spratt, 2006 WL 505441,

at *4 & n.8 (Mich. Ct. App. Mar. 2, 2006) (per curiam); O’Keefe, 414 P.2d at 839 n.8

(“circumstantial evidence” includes evidence that children “similarly endowed” to the

plaintiff in terms of age and experience “would have realized the danger”).

Compounding this error, the trial court allowed Choate to introduce evidence of

other incidents of children jumping onto moving trains about which Choate was totally

unaware. Tr. 1684. That ruling enabled Choate to argue that defendants realized that

children would not find the moving trains to be an obvious danger (Tr. 2437); that they

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