“The element of attraction is significant in so far as

“The element of attraction is significant in so far as it indicates that the trespass should be anticipated…” —Rochford, Justice  Facts: Dominic Choate and his friends Steve, Charlie, Alisa, Brittany, and Jessica lived in Chicago Ridge, Illinois. Dominic was 12 years old and going into the seventh grade. Dominic and his friends gathered in a parking lot near three railroad tracks that ran behind the parking lot. He and his friends were going from one side of the tracks to reach Steve’s house located on the other side of the tracks. The children were going to cross the railroad tracks at an intermediate point of a 6,000-foot-long corridor of railroad tracks rather than walking to either end and crossing at safe pedestrian access roads. However, a freight train traveling about 9 to 10 miles per hour was going by on the second track. The boys approached the freight train. Dominic, in order to impress his girlfriend Alisa, tried to jump the moving train to ride it for a short distance before jumping off. Dominic twice ran alongside the train and tried to grab a ladder attached to the train, but was unsuccessful each time. On the third try, Dominic grabbed hold of the ladder but fell off onto the railroad tracks and the train ran over his left foot. When Dominic went to stand up he looked and saw that his left foot had been severed. Dominic was taken to a hospital where surgeons amputated his left leg just below the knee. Dominic, by Vicki Choate, his mother, sued the Baltimore and Ohio Terminal Railroad Company (B&OC), which owns the railroad tracks; Indiana Harbor Belt Railroad Company (IHB), which patrols the rightof-way; and CSX Transportation, Inc., which wholly owns B&OC, to recover damages for Dominic’s personal injuries. Testimony at trial proved that IHB officers notified parents of one thousand children each year that their children had been caught crossing the railroad tracks. An employee of IHB testified that over the years he had seen approximately 50 children trying to catch rides on trains. Previously to the accident, an IHB patrol caught Dominic crossing the railroad tracks and had notified his mother. The plaintiff’s expert witness testified that because the two access roads that allowed safe passage across the railroad tracks were 6,000 feet apart—approximately one mile—people were crossing the tracks at intermediate points to avoid having to walk approximately one-half hour to reach a safe crossing point. The expert testified that the cost of constructing an eight-foot high chain-link fence on both sides of the 6,000-foot corridor would cost less than $40,000. The plaintiff’s expert also testified that the railroad companies could have built one or more pedestrian overpasses at intermittent points above the railroad tracks for approximately $150,000 each. The defendant’s expert witness testified that putting a fence along the 6,000-foot corridor would unlikely remain intact because kids would cut holes in the fence. He also testified that it would cost up to $7.5 million to build a pedestrian overpass above the railroad tracks. The jury, having considered the evidence, returned a verdict in favor of the plaintiff in the amount of $6.5 million, which it reduced to $3.9 million after finding that Dominic was 40 percent comparatively negligent. The defendants made a motion to the trial court judge to grant a judgment notwithstanding the verdict (j.n.o.v.) which would override the jury’s verdict. The defendants asserted that the evidence introduced at trial showed that Dominic’s attempt to jump aboard a moving freight train was an open and obvious danger, for which the defendants owed Dominic no duty. The trial court denied the defendants’ motion. The defendants appealed.  Issue: Did plaintiff Dominic’s act of jumping aboard a moving freight train pose an open and obvious danger that relieved the defendants of liability?  Language of the Court: The element of attraction is significant in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child. On the facts of the present case, it is not beyond comprehension that children of plaintiff’s general age and experience would foreseeably be unable to appreciate the risk of jumping aboard the moving freight train traveling 9 to 10 miles per hour. The issue was one of fact for the jury to determine. Specifically, plaintiff testified at trial that, at the time he was attempting to board the moving train, he did not know he was doing something dangerous.  Decision: The appellate court held that the trial court did not err in denying defendants’ motion for judgment notwithstanding the verdict and let the trial court’s judgment in favor of the plaintiff stand.  Ethics Questions: Did the defendants act ethically by not taking greater steps to prevent injuries? Should the plaintiff have been awarded $3.9 million?

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