Choate v. Ind. Harbor Belt R.R. Co.

• Decision Date: 01 August 2011
• Docket Number: No. 1–10–0209.,1–10–0209.
• Citation: 352 Ill.Dec. 677,954 N.E.2d 760,2011 IL App (1st) 100209
• Parties: Dominic CHOATE, Plaintiff–Appellee,v.INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana Corporation; The Baltimore and Ohio Chicago Terminal Railroad Company, an Illinois Corporation; and CSX Transportation, Inc., a Virginia Corporation, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 100209
954 N.E.2d 760
352 Ill.Dec. 677

Dominic CHOATE, Plaintiff–Appellee,
v.
INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana Corporation; The Baltimore and Ohio Chicago Terminal Railroad Company, an Illinois Corporation; and CSX Transportation, Inc., a Virginia Corporation, Defendants–Appellants.

No. 1–10–0209.

Appellate Court of Illinois, First District, First Division.

June 27, 2011.As Modified Upon Denial of Rehearing Aug. 1, 2011.

[954 N.E.2d 765]

Fedota Childers, P.C. (David R. Schmidt, George H. Brandt, of counsel), Mayer Brown, LLP (Michele Odorizzi, of counsel), Chicago, Mayer Brown, LLP, Washington, D.C. (Evan M. Tager, Brian J. Wong, of counsel), for appellants.Hall Prangle & Schoonveld, LLC, Chicago (Hugh C. Griffin, of counsel), Sandberg Phoenix & von Gontard, PC, Edwardsville (Philip J. Lading, A. Courtney Cox, Anthony L. Martin, of counsel), Association of American Railroads (Louis P. Warchot, Daniel Saphire, of counsel), Shook Hardy & Bacon, LLP (Mark A. Behrens, Christopher E. Appel, of counsel), Washington Legal Foundation (Daniel J. Popeo, Richard A. Samp, of counsel), Washington, D.C., for amici curiae.Brustin & Lundblad, Ltd. (Leslie J. Rosen, of counsel), Law Offices of Leslie J. Rosen (Leslie J. Rosen, of counsel), Chicago, for appellees.Rubin Machado & Rosenblum, Ltd., Chicago (Richard J. Rosenblum, of counsel), for amicus curiae.[352 Ill.Dec. 682] OPINION Justice ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Minor-plaintiff,¹ Dominic Choate, by Vickie Choate, his mother and next friend, and Vickie Choate, individually, brought a negligence action against defendants, Indiana Harbor Belt Railroad Company (IHB), the Baltimore and Ohio Chicago Terminal Railroad Company (B & OCT), and CSX Transportation, Inc. (CSX), to recover damages for personal injuries plaintiff suffered while attempting to jump aboard a moving freight train traveling 9 to 10 miles per hour. The jury returned a verdict in favor of plaintiff in the amount of $6.5 million, which it reduced to $3.9 million after finding that plaintiff was 40% comparatively negligent. On appeal, defendants contend the circuit court erred by: (1) denying their motion for judgment notwithstanding the verdict because plaintiff's attempt to jump aboard a moving freight train constituted an open and obvious danger for which defendants owed the minor plaintiff no duty, and because plaintiff failed to present competent evidence of remedial measures defendants reasonably could have implemented that would have [352 Ill.Dec. 683]

[954 N.E.2d 766]

prevented plaintiff from jumping aboard the moving freight train; (2) failing to give effect to an allegedly binding judicial admission made by plaintiff as to his subjective appreciation of the danger involved in jumping on a moving freight train; (3) refusing to give a special interrogatory asking the jury whether plaintiff appreciated at the time he was injured that attempting to jump on a moving freight train presented a risk of harm to him; (4) excluding testimony of plaintiff's companions that they recognized that jumping onto a moving freight train was dangerous, while at the same time allowing plaintiff to introduce evidence that other minors had attempted to jump on moving freight trains; (5) allowing plaintiff's expert witness to offer conclusions lacking a factual foundation and to opine on issues outside the scope of his expertise; (6) admitting certain testimony from a special agent of the IHB police department that was irrelevant and beyond his level of expertise; (7) admitting the school psychologist's testimony regarding plaintiff's low-average intelligence; and (8) allowing plaintiff to cross-examine defendants' engineering expert using a photograph for which no foundation was established. Defendants also contend they are entitled to a new trial because the verdict was against the manifest weight of the evidence. We affirm.

¶ 2 While attempting to jump aboard a moving freight train which was traveling 9 to 10 miles per hour, plaintiff fell on the tracks and the train ran over his left foot, necessitating amputation of his left leg below his knee. Plaintiff filed suit against defendants, alleging that they owned, operated, managed, maintained and controlled the train tracks where he was injured and that they failed to adequately fence the area or otherwise prevent minor children from accessing the tracks or warn them of the danger. The circuit court initially granted summary judgment in favor of defendants, finding from plaintiff's deposition testimony that he had subjectively appreciated the danger of jumping aboard the moving freight train and therefore defendants owed him no duty of care. Plaintiff subsequently filed a motion to reconsider that the circuit court granted, finding that an objective standard applied as to whether the danger of jumping aboard a moving freight train was so obvious as to negate any duty owed by defendants. Finding that this should be a question of fact for the jury, the circuit court vacated the earlier order granting summary judgment in favor of defendants. The cause proceeded to trial.

¶ 3 Evidence at trial established the following facts. In July 2003, plaintiff was 12 years and 9 months old and had finished the sixth grade. Dr. Richard Lencki, a school psychologist, testified he performed individual intelligence testing on plaintiff in January 2003 during the sixth grade school year. The testing showed that plaintiff had a full scale IQ of 83, which was a “low-average” score in the 13th percentile, meaning that 87% of children his age scored higher than him. Dr. Lencki specifically determined that plaintiff was not mentally retarded. Plaintiff could read at a fifth grade level and his math reasoning skills were at a fourth grade level. Plaintiff was capable of meeting his sixth grade requirements and he had received supplemental educational services to help him do so.

¶ 4 On July 30, 2003, plaintiff and his friends Charlie Spindler, Steve Weyer, Alisa Van Witzenburg, Jessica Gunderson and Brittany Edgar gathered at the parking lot of an apartment building at 5810 West 107th Court Way in Chicago Ridge, Illinois. Three railroad tracks run in a northwest-southeast direction behind the parking lot. Defendant CSX owns the tracks, while defendant IHB patrols the [352 Ill.Dec. 684]

[954 N.E.2d 767]

right-of-way. Defendant B & OCT is wholly owned by CSX.

¶ 5 Looking north from the parking lot, one sees a chain-link fence around a portion of the tracks; the fence does not extend all the way around the tracks. There is a sign mounted on the fence near where it ends, which reads:

“ DANGER

NO

TRESPASSING

NO

DUMPING”

Plaintiff testified he did not see this sign on July 30, 2003. Another fence is on the other side of the tracks. That fence had a hole in it and was rolled back so that people could walk through it to get to the tracks.

¶ 6 Plaintiff was scooting his bicycle around the parking lot, about 50 feet from the railroad tracks, and talking to his friends when an eastbound freight train appeared on the middle of the three tracks. Plaintiff testified that the train's speed was 9 to 10 miles per hour and that the train kept going at a steady speed and never stopped. Alisa, Brittany, and Jessica testified that they thought the train might have been stopped for part of the time, but they all agreed that the train was moving at the time plaintiff was injured. Brittany testified that the train was moving “slow.”

¶ 7 Plaintiff testified that after a couple of minutes, he, Charlie, and Steve began walking toward the tracks. They stepped onto the railroad right-of-way, defined as “the track or roadbed owned, leased, or operated by a rail carrier which is located on either side of its tracks and which is readily recognizable to a reasonable person as being railroad property or is reasonably identified as such by fencing or appropriate signs.” 625 ILCS 5/18c–7503(3) (West 2002). Under the Illinois Vehicle Code, no unauthorized person is permitted to “walk, ride, drive or be upon or along the right of way or rail yard of a rail carrier within the State, at a place other than a public crossing.” 625 ILCS 5/18c–7503(1)(a)(i) (West 2002). The parties agree that plaintiff and his companions were trespassers as soon as they stepped onto the railroad right-of-way.

¶ 8 Plaintiff testified their original intention was to wait for the train to pass and then cross the tracks to visit Steve's house on the other side. Alisa similarly testified to plaintiff's, Charlie's, and Steve's original intent to cross the tracks to reach Steve's house. Alisa further testified that they did not want to walk around the train because it would take them a half-hour to do so.

¶ 9 Plaintiff testified that while the train was blocking their path across the tracks, he and Charlie decided on the spur-of-the-moment to jump onto the train. Plaintiff testified that Charlie tried first by attempting to grab onto the ladder on the side of the train. Charlie was unsuccessful in his attempt and stepped away from the train. Plaintiff then attempted to grab hold of the ladder. Plaintiff testified his motivation in doing so was to impress Alisa, whom he was dating at that time. Plaintiff had never before attempted to jump aboard a moving train, nor had he seen anyone successfully do so.

¶ 10 Plaintiff testified he made three attempts to jump on the train. Brittany testified she and the other girls yelled at plaintiff to stay away from the train, but plaintiff testified he never heard the warning because the train was so loud that it was hard to hear. Plaintiff testified that on his first attempt, he stood flat-footed on the ground and did not run along the side of the train. Although plaintiff was only about 4 feet 10 inches tall at the time, he was able to touch the bottom rung of the ladder. In attempting to “cup” his hand around the rung of the ladder, two of his [352...