is undisputed that while trespassing on defendant's right of way and despite having been warned over a dozen times that trains are dangerous dominant cho was injured trying to jump on a moving train in order to impress his girlfriend court's decision upholding the verdict in church in choate's favor is wrong for at least three reasons first defendant showed no duty under contant because as a matter of law the dangers of moving trains are obvious to children old enough to be at large second even if that weren't so the evidence in this case that cho had actual knowledge that moving trains are dangerous is so overwhelmingly one sided as  liability third as a matter of wa the cost in burden of preventing children from trying to jump on moving freight trains is not sufficiently modest to allow imposition of a duty on the owners of railroad right rights of way with respect to the first ground this court made clear in mt sinai on that the question whether a particular danger is obvious for purposes of the con doctrine is an issue of law for the court to decide so the appellate court should have ruled one way or the other whether the danger of a moving train is objectively obvious instead of upholding the verdict on the ground that the issue is one as to which reasonable minds can differ but both of those cases predate mt zion and neither faithfully applied this court's earlier decisions in corcoran cope and logan those four prior decisions of this court along with  itself supply the governing principles and those principles leave no doubt that the danger of a moving train is subjectively obvious as a matter of law first each of the cases recognizes that con is a limited exception to the general rule that landowners are under no duty to protect child trespassers from conditions on their property and if i may i'd like to read from a short a short quote from conn which i think captures this so well and it says in a civilization based on private ownership it is considered a socially desirable policy to permit a person use of his land in his own way without the burden of watching him protecting those who came there without permission or right second these cases all recognize that the responsibility for children safety lies primarily with their parents third that means that the duty of the landowner to children on its premises is limited to protecting them against dangers that would not be obvious to children old enough to be at large  its most in its two most recent cases logan and mt sinai on the court has cast laid on the meaning of obvious by contrast thing it with latent if i again may quote from mt zion even if an owner or occupier knows that children frequent his premises he is not required to protect against the ever present possibility that children will insure themselves on obvious or calming conditions while certainly there latent dangers that a child would not appreciate due to his minority a possessor of land is free to rely upon the assumption that any child old enough to be allowed at large by his parents will appreciate certain obvious danger or at least make his own intelligent and responsible choice concerning now this distinction perfectly describes the contours of the con doctrine and explains the outcomes of all five cases this court has decided on  when it dangerous out there in the open obvious for all children old enough at law to be at large to see and comprehend there is no duty but when the danger is latent for example that of a pile principles here can lead to only one conclusion the danger of a moving freight train is obvious as both the restatement and courts throughout the country have recognized indeed that conclusion should be a four she are i if those dangers are are obvious that dangers of a massively large deafening legal out moving freight train should be as well now if you agree with us that the danger of moving trains is objective obvious to children old enough to be at large then choate's actual knowledge of the danger doesn't matter but if you disagree with us and hold that the danger of moving trains isn't objectively obvious to children generally cho actual knowledge should nonetheless preclude liability the appellate court rejected or commence on this issue on this issue on the ground that this suspect of the conduct and allows liability so long as the child does not have actual knowledge of the quote full unquote extent of the danger in other words if the child knows he could get hurt but doesn't know how badly he can still recover although some authorities do use the modifier full and describing this aspect of the inquiry the fourth district in show and several courts in other states have expressed we rejected the notion that a child must have knowledge of the full extent of the harm that could befall him in order for the defendant to be relieved of liability and they were right to do so because such a rule would encourage children to dissemble on the witness stand this case is the perfect illustration choate's mother testified that she told him about a childhood friend who had lost both his legs after an encounter with a train she had no possible motivation for a lot but he nonetheless deny that in the more than a dozen times she had warned him about trains she had ever told him that he could lose a limb but even if you conclude that knowledge of the full extent of the risk is required the verdict can't stand for two different reasons first the evidence is overwhelming that showed did have knowledge of the full extent of the danger of a moving freight train that knowledge included that you fishel admissions he made in his deposition that he knew that trains are dangerous and that dangerous means that he could be killed or lose a limb as we explained in our mother testified that she told him about a childhood friend who lost both legs in an accident with the train and the very fact that the train was so large and so loud that he could hear nothing else is another  trial testimony that he didn't know that jumping on a moving train is dangerous at the time he was doing it but that isn't enough under patrick which requires courts to consider all the evidence in the case and recognizes that evidence that may seem substantial when standing alone fades to in significance when viewed in conjunction with the other evidence in the case in petrik itself the court reversed the jury verdict explaining that quote when the dubious probative value of the testimony of the plaintiffs is considered in the light of the unequivocal testimony by persons with no apparent interest in the outcome of the lawsuit it may fairly be said that all of the evidence viewed most favorably to the plaintiffs so overwhelmingly favors the fen that no contrary verdict based on this evidence could ever stand now that statement fits this case like a glove indeed this case should be a for sure all right from patrick because mrs cho testimony that she warned her son that he could lose his legs was against her financial interest keeping it exceptionally strong credibility moreover even if hedrick did not require that judgment be entered in error involves khan's remedial prom under which there is a duty only when the cost of avoiding harm to the child trespasser is slight choate's expert dr byrd said that the accident likely would not have occurred had defendants gun both of two things first completely fenced the six thousand foot corridor between rachel and central avenues on both sides continuously replacing the fencing whenever people cut holes in it and second build a protest re an overpass at austin monitoring it to determine whether it sufficiently reduced the trespassing problem at the site of the accident which was about a quarter of a austin and if not build the second overpass there now there are three independent reasons why this testimony is not sufficient to support liability younger con first and i think this is the easiest most straightforward direct answer is there are no cases in illinois or anywhere else to our knowledge that have imposed a duty on a landowner to undertake such a burden some effort which in this case involves with well they i felt it was relevant because they couldn't otherwise explain how they would keep people off the tracks when one people were constantly and off the tracks and not jumping on trains where ever they encounter them when people were constantly cutting holes in the fence the problem they had in the case was they had a fence with a hole in it right across from where the accident occurred now that fence wasn't used to access the tracks here because he came from the opposite side but they knew going into the case that they couldn't do it just by fence and they would lose the case because of the whole cutting problem so they came up with this theory that the real problem is saying i'm not an expert on this so you'll have to check me but my understanding is that whenever there is a request to either build or close a crossing wherever it is the i c c has to be involved with the requests made by the railroad here now to give direction that look not to the application and you don't know whether it would even be available to protect that strips the stuff that's absolutely right we don't know what they would have done and but the point i was about to make was that no court anywhere has imposed a duty on a land owner to do something that requires the approval of a state agency the cooperation of two different municipalities was don't worry be happy you know it'll work out landowners are cooperate we'll figure out how high it needs to be it'll you know you'll get the easements you need the i c c will approve this the two music nyssa polities will happily go along but he had not done any background work to ask fully established any of this stuff so but again going back to the first point i wanted to make you won't find any case anywhere that has imposed this kind of duty pay to have cooperation with all those different entities and permission in the case of the i c c and b to perpetually monitor he had a you have to monitor the fence and make sure that every time it's cut it's repaired be you have to monitor to see if that crossing is doing its job or if it's still if people are still accessing the tracks somewhere else you've got to build another so bad it's completely unprecedented and the other thing he did that i think is completely contrary to illinois is he took illinois law excuse me is he took no account of the fact the train flipping ten occur anywhere there are tracks by limiting the scope of his proposed remedy to this one corridor he disregarded the court's established case law holding that in determining whether a particular brandy is reasonable courts must consider the cost of replicating it anywhere th injury could happen choate's own evidence establish that trespassing generally and train flipping in particular takes place throughout the fifty five miles of track illinois harbor belt patrols for example dr byrd testified that i h v caught trespassers near the accident site about fifteen times a year while i police chief testify that it caught trespassers roughly a thousand times a year throughout the system the fifty five miles that means that only one point five percent of the trust passing took place at the site of the accident so burke's testimony that there was no need to replicate his proposed remedial measure of system why not only was caught eight times at central and another forty seven times at the landis platt plastics factory which is within a couple of blocks of the great crossing at central now remember these are both accurate crossings so when you're at those crossings you can easily get to the track so you've got a lot of trespassing going right there and yet she says no you only need this one within the one one overpass within the six thousand foot corridor when in fact their own evidence proves that even within this one corridor there would need to be at least three under burke's own theory finally even if the burden of fencing in a right of way and building in building an overpass could theoretically be slayed enough to allow liability under con and again i don't think it's in the least bit consistent with the principles this court has announced in the prior cases dr bird's testimony about the cost of these measures is so transparently speculative and unbelievable as to be insufficient as a matter of law we pointed out many of the things he failed to account for in our briefs but to hit just a few highlights he had no idea how high the overpass at austin would have to be in order to clear the freight trains he had no idea what it would cost to make it eighty eight compliant which would entail lengthy ramps to enable wheelchairs to get from ground level to well above the highest point on the repeatedly had a cut up had cut a hole in the fence north of the site but he offered no estimate for what it would cost to monitor the entire twelve thousand feet a fence and to replace it every time it got i if i may i'll just wrap up can i read one quote from his testimony weekly this just proves how speculative it all was i'll read the quote and sit down once you make the initial physical improvements that in my opinion are justified and needed then you need to monitor and right now all your questions are speculative because we don't know if you would do install fencing and put in an overpass i would expect that that would solve virtually all of the problem now it may not how much of the problem remains no one would know until you do this so i can't speculate nor can you nor can anyone else as to what you might find thank you on what are you asking of well our principal form of the least request is a reverse and render but failing that a new trial because of the failure to  the morning it please the court my live on blood on behalf of the plaintiff dominic show this court has said a number a number of times that duty the cornerstone of duty is foreseeability and in the defense that the railroads have made claiming that their train was open and obvious this court specifically in mount zion has looked at this and has talked about how do you analyze and what does it mean to be open and obvious now the theory is that is that if some danger is open and obvious that people will avoid it because they will know that they will get hurt and they will stay away from it therefore this cour own design that if something is obvious people will avoid it there can be no foreseeability of injury now with regard to determining whether something is open and obvious this court again in m said that the issue involves not whether the child does in fact understand but what the possessor may reasonably expect of him that phrase i believe is  and key to this case we have to look at the facts from the perspective of the defendant railroads what could they anticipate that children would do on their property in chicago ridge well first of all we had boxes ten boxes of citations that were humiliated over a number of years by the harbor belt police officers they saw children on these tracks they saw children as young as four they saw children pulling bicycles understanding trains they saw children crawling between cars trying to get across the tracks in addition to that they saw in chicago ri children under the age of thirteen trying to catch rides on trains it's just ific leave that question was asked of lieutenant griffith who said i've seen them not often and his memory was refreshed he said fifty if you look at mr ludwig are we talking about two different things here the difference is the fact that children will decide to proceed does that take it in  of itself out of the open and i v s room or are we in the position i'm sure there are kids the drone and swimming pools too and as far as the mt zion case you have a six year old but they find it's open an obvious for a calm cool right to know that that's an open and obvious danger i think we could probably go through this jurisdiction and others and see a number of tragic children's deaths where they jump in pools anyway while there was still well i think the distinction between month sign and this case were months i know of all the swimming pool is that there was no evidence that children frequented the property there was no evidence that other kids had crawled over this pedestal to get to the pool and this court said actually that there was no forsee ability it could have stopped there but it went on with the analysis i think the distinction here is that in this record not only was there the observation of the officers and the data they accumulated but the eyewitness testimony as well austin patton who lived in the apartment building said i saw kids streaming across that railroad track those railroad tracks every day i saw them going across in their little league uniforms to go to the park that was next door there was evidence that on the north side there was a beaten path path beaten down by the footprints of god knows how many kids crossing those row of tracks i think under those circumstances when the incident that occurred however the testimony was is that when dominic and his two male friends charlie's spindler and mr wire went through this parking lot behind the apartment building their purpose their intention was to cross the track that they were going to go to stevie wire's house it was on the north side of the track i the only reason they didn't is because there was a train on their way now there's some discrepancy in the testimony but under the petrik standard this court has to look at the evidence most favorable to the plaintiff lisa van whitson byrd testified when they got to this parking lot there was a train part a train parked  blocking the boys from going to where they wanted to go she also testified that after getting waiting the boys got impatient and they decided they were going to go up to the train and crawl through it and it was that bad time the train started moving and then it was a matter of spontaneousness where chief charlie spindler according to the testimony of plaintiff confirmed by mr patten first attempted to  try to catch a ride this case if dr bird's remedies had been in place would never happen because those children keep children right away here they have a duty under the could ever do i believe they have a duty under the facts of this case because of the knowledge they had of the magnitude of the trespassing going on bird proposed was providing a safe means for children to cross the tracks if there had been if there had been over and this young  suggested is that you need to channelize children you need to have them crossing at specified spots for example back at central avenue or ridgeland with where you have bells whistles and crossing arms he said based on his experience he has been it's in the business of safety for more than forty years that children when they're in that type of setting are not likely to try to catch a ride they're at a street the at a busy place they're going to cross as they're supposed to and i think that one thing that's been overlooked is that dr berg's remedy was already done it had already already existed and defendants tracks this topic was brought up by their own expert mr bradley who went out and looked at a site on defendant's track a couple miles away it was next to an elementary school and the jury saw pictures of it there was discussion of it the area was fenced off children were directed to this overpass which they were using to get from one side of the tracks to the school so the this problem was not as defendants suggest something that was impossible that it already existed and was already in place was limp it whether there's a remedy if indeed there has to be a duty you would agree we start with a duty right absolute and i want to try to understand your argument which quite frankly i don't read now if aren't you writing out the whole concept of open and i because if used it was i understand what you're saying is you're saying even if the danger train what you're saying as i understand it and tell me if it's different because i want to understand this you're saying even if there is an open in obvious danger if there is now lives then it kids are duty regardless of the danger being open and i was or is it your is it your argument today or is it something different than now that that's correct and this court in a number of cases such as jackson versus chelsea has held that if something is open and obvious that does not end the discussion it's not a per se bar to finding a duty that instead a court has to look at the four factors that go in determining whether or not duty exists under negligence the first one is what what exercise machine where these cases all decided before moans i know they were only after a month yes and in those instances the court has said you have to look at the four traditional factors for negligence the first one is what's the likelihood of an injury here we have hundreds of kids how many i don't who knows how many kids crossing every day and i would like to point out that the second thing is foreseeability and i think with all these kids crossing and doing the behavior that was observed of crawling through trains climbing on trains that the injury was foreseeable and i point to the american national bank case versus pennsylvania railroad where the court there under similar circumstances found a duty and they said where there are so many kids going back and forth that it was not only for seeable but the incident injury was inevitable and i think that language and that thought applies here as well i  in as far as the four traditional negligent factors are concerned those are the the final two one is what's the burden or the magnitude of require a defendant to to remedy the situation and the other what's the in i believe it was the american national bank versus pennsylvania case they were looking at what would be required there was an unfinished fence and they looked at what would be the cost of completing that fence and the court ruled that the cost was not enough it was was low enough that the benefit of preventing further injuries or deaths i weighed that cost and i think here that you know the cost that mr berg presented was was limb and has to have medical care for the rest of their life i think that those costs are are sufficiently outweighed by the benefit to to impose such an obligation that was a cost a bike path that crossed over railroad tracks where they had to build an overpass that was in part his basis of knowledge and that he found that the cost was not outrageous and that's where he came up with his cross and walk a half a mile to come back it was professor burns opinion now he analyzed this as counsel pointed out that he did a graph of all the various tickets in the area and there was clusters that  occurred where the accident happened a block away at austin and within the set radius within the middle of the belly if you will of this was where the track was and so was his opinion that he believed that if you had one legal crossing in the middle that that would be adequate and that would be sufficient to provide the safe crossing that was required by the demand for trips as he called it and that that it would be satisfactory well i have to respectfully disagree that there was testimony and in particular i would refer madam just as to the testimony of mr trumka who was a paramedic he lived grew up in that neighborhood and he said when he was a kid twenty years earlier the same thing was happening people were going across and hidden in his testimony he was asked to map out what was there and sort of dr burke and what you'll find is that there were schools on the south side there were schools on the north side which central high school is on central avenue there were there was a park right next door to where the injury occurred there was another park to the north side you had apartment buildings on both sides so i think the evidence is that there were kids living along this corridor who had reason to go to both sides whether to go to school or to visit friends but certainly to go to school because i believe there was a middle school on one side and the elementary school is a matter of law determination but of course it sounds like this is a trial of duty i'm not sure i understand quite how we got to the point of the trial on these issues when it should be a decision for the court as a matter of law there those issues were raised in motions for summary judgment and the court ruled in favor of the plaintiff and found that there was a basis for going forward a duty i think that if you look at that's the general rule yes and did this court make that determination i believe they followed the engle decision and said whether or not this particular danger was open and obvious  court didn't have to make a decision as a matter of why they were they ruled that the case that there was a tribal issue on whether or not something was open and duty right so this is a trial on duty well i think that under this particular doctrine if you look at the jury instruction number one twenty that of the i p i it's like a mixture of fact and duty because first of all in order to prevail plaintiff has to show and prove defendants knew that children were frequenting their property and plaintiffs prove that the second point was that the plaintiff has to show that there was a risk on the property presented to children that they would not appreciate it due to their immaturity and again i believe the evidence in the record overwhelmingly establishes that children do not appreciate do not avoid the dangers that come come along with trains and train tracks so i think that it's in some respects a combination under con and that the jury was given the instruction that has been approved by this court in the i p i and they made a finding in favor of plaintiffs based on that so i believe  that it was appropriate to give this case to the jury as the trial judge did and that the jury they found the elements that plaintiff had to prove they also found that mr cho at fault comparatively at fault they reduced his award by forty percent and i believe that the jury made a just finding reached a just result that should be affirmed by this fort think before you leave your time  it's in everyone's do your first see ability that the railroad had knowledge that there were frequent kids trespassing and do we doing these type of activities and i just again want to know i believe we said in zion that the defendant could reasonably expect trespassing children to appreciate the risks associated with it so it isn't there are even in mount zion a indication at least that v s danger would take priority over the knowledge of trespassing saying that the defendant could x reasonably expect them to appreciate it as a result of it why would a railroad in light of our holding in mount zion say well yeah we know about these kids doing it but there's a case right on point what they simply an open an obvious danger that says we should be able to expect them to pool here the railroads knew they had boxes of documents they documented the number of occasions kids cross this railroad tracks that they knew that in spite of the trains being on their tracks kids were nonetheless exposing themselves to the hazard and then mount syon this court said you have to look at what would be reasonable for the defendants to expect and i suggest to you that under the facts of this case where the defendants have the knowledge of what was going on in their tracks he would be on reasonable for them to say that this danger was open an obvious thank you oh few points in rebuttal starting out with the foreseeability point i think the simple answer is that's a separate element of the con doctrine that wasn't in dispute here it's not sufficient under a con to establish that the landowner knew or should have known that children frequent the premises that's an indispensable starting point so i don't think it's going to enable him to overcome the open and obvious problem and i think the analogy that justice thomas gave to about the swimming holes or you know water bodies of water we know we know that kids are going to that children should recognise obvious dangers and that is the parents responsibility not the landowners to protect them from that so that's my first point  with respect to mr one blatz statement that mr patten testified that he saw kids crossing the tracks frequently i think this goes back to justice point about the difference between crossing tracks and jumping on trains as the trial court said this is a jumping on the train to impress my girlfriend case not a crossing case and patton said when asked i never saw kids trying to jump on trains at that location with respect to his statement that this is a new one that he injected into the case after you took it this idea that it was part that is contradicted by cho himself by patton the descent disinterested bystander and by the event data recorder on the train which said it was moving the entire time and you know event data recorders don't lie  with respect to the location of the proposed overpass and i think this was just his garments point if i'm not mistaken but it might have been justice for you right there was no one central location that this was that kids were routinely going to as opposed to the school that he adverted to it's interesting to know that the accident took place midway between austin and central that is to say he berg wants to build another night that he doesn't want to build he wants us to build another crossing at austin which is a quarter mile from where this accident took place when people were not using the crossing that existed at central which was equally distant so i think that goes to show why this remedy would be insufficient  merits he mentioned a case called jackson versus t l c which wasn't cited in the briefs and my guess is it's an invitee case not a trespasser case because the law in invitee cases is that there may still be an exception even if the plaintiff can't satisfy the contradiction but under current and the four cases that this court has decided applying time that is the universe to child just passers you do not have any other way around if as a matter of law the duty is obvious or if you fail on any of the other the danger is obvious excuse me similarly the idea of converting khan into a balancing test instead of saying each element has to be independently established is completely contrary to corcoran coke logan and mt sinai in every one of those cases the court cut it off after saying there was no obvious danger here so they didn't say well gee wouldn't have cost much to prune that tree and then the swing within of being caught in it and he wouldn't have fallen and therefore even though heights are an obvious danger we're going to impose his duty on the landowner so a balancing test would constitute a fundamental we writing of the  justice tice's question about how we got to a trial i think you may have answered it just by the just to be clear there was the summary judgment motion it was originally granted the judge reconsidered and conflated the subjective in and object of components and said of the of the danger issue and said we need to have a trial here on whether a whether the danger is subjectively obvious and that of course is completely mistaken so finally on the frequent trespasser doctrine the only thing i think i'd add on that is the doctrine didn't go to trial we prevailed on that there is no procedural mechanism by which he can reinjected into the case at this time as an all big and alternative basis for a ferment because you know that's that's a course of action he would have to prove and he never proved that a trial it wasn't in the case in any event he couldn't prove it which is why we prevailed in the first place because the only thing is that that doctrine would address is if he had been injured crossing the tracks using a well worn path that he personally had used many times in the past and that's certainly not what happened here i think i should end where we are what we were before this is not a crossing case this is a jumping on a train case to impress my girlfriend and that's why the frequent trespasser doctrine is of no use to him unless there are further questions i let everybody go to lunch