## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

Choat e v. Indiana Harbor B elt R.R. C o. , 2012 IL 112948

Caption in S upreme Court: DOMI NI C CHOAT E
, Appellee
, v. I NDIANA HARBO R BEL T RAI L ROAD COMPANY et al. , Appellants.

Docke t No. 112948

Filed Rehea ringdenied September 20, 2012

November

26, 2012

Held ( Note : Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant r ailroads ha d no leg al duty to a 12-y ear -old trespa sser who was injured when he attempted to jump on a moving tra in, and the issue of duty

should not have bee n sent to the jury —plaintiff’s ver dict

reve rsed.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appeal from the Circuit Court of Cook County
, the Hon. Wil liam J

. Hadda d, J udg e, pre siding.

J udg ment J udg ments reve rsed.Counsel on

Appea l Michele L

. Odorizz i, of Chicag o, and Evan M. Tag er and Br ian J

. Wong, of W as h i n gt o n , D.C., all of May er Brown, L L P, and David R. Schmidt and Geor g e H. Br ant, of Fe dota Childers, P.C., of Chicag o, for appellants.

Milo W. Lundblad and Marvin Br ustin, of B rustin & L

undblad, L td., of Chicag o (L eslie J. R osen, of c ounsel), for appellee

.

Hug h C. Griff

in, of Hall, Prang le & Schoonveld, L L C, of Chicag o (L ouis P. Warchot and Daniel Saphire, of W as h i n g ton, D.C., of counsel), for amici curiaeAssociation of Ame rica n Railroads et al

.

Rache l Kaplan and Stephen Wood, of Chicag o, for amicu s curi ae Chicag o Transit Authority

.

Richard J

. Rosenblum, of Rub i n, Macha do & Rosenblum, L td., of Chicag o, for amicus curiaeI llinois Trial L awyers Assoc iation.

J ustices J USTI CE FREEMAN delivere d the judgme nt of the court, with opinion.
J ustices Thomas, Gar

man, Kar meier, Bur

ke, and Theis concur

red in the judgme nt and opinion. Chief J ustice Kilbride dissented upon denial of rehe aring
, with opinion.

OP INION

¶ 1 Plaintiff, Dominic Choate, broug ht a persona l injury action in the circ uit court of Cook County ag ainst defe ndants, Indiana Har bor Be lt Railroad Company (I HB ), the Ba ltimore and Ohio Chicag o Terminal Railroad Company (B &O CT), and CSX Transpor tation, Inc. (CSX). A jury returne d a verdic t in favor of plaintiff. The appellate court aff irmed. 2011 I L App (1st) 100209. We allowed defe ndants’ petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010). We now re verse the judg ments of the appe llate and c ircuit courts.

¶ 2 I . BA CKGROUND ¶ 3 A. Under lying F acts ¶ 4 In J uly 2003, plaintiff was 12 y ear s and 9 months old, and had finished the six th gr ade. Plaintiff lived in Chicag o Ridge

. C SX, which wholly owns B& OCT, owns three railroa d
trac ks that run northwest to southe ast throug h Chicag o Ridge

. I HB manag es the trac ks and patrols the ra ilroad right-of-w ay

.

-2-¶ 5 Plaintiff testified t hat on J uly 30, 2003, he and two friends, St even Wey er and Charles Spindler, met up with three g irls
, Al i s a Van Wit zenburg
, Br ittany Edg ar, and J essica Gunder son in the parking lot of an apar tment building in Chicag o Ridge

. These children wer e all betwee n 12 and 13 y ear s old. ¶ 6 Def

endants’ railroa d trac ks lie adjac ent to the north side of the parking lot. There was no railroa d crossing at that location. The near est cro s s i n gs were at Ridge land Avenue
, approximately three -quar ters of a mile northwest, and Central Avenue
, approximately onequarte r of a mile southeast. Only seg ment s o f this mile-long corr idor wer e fenc ed. On the north side of the tra cks at the pa rkinglot, a chain link fe nce w as torn open a nd rolled bac k
to enable people to walk throug h it to cross the trac ks. On the south side of the trac ks, a chain link f ence ended east of the parking lot. A sign posted on the west end of this fe nce rea d as follows:
“DAN GER
NO
TRESP ASSI

NG
NO
DUMPI NG”
Acc ordingto his testim ony , plaintiff did not see this sign on July 30, 2009. ¶ 7 Plaintiff further testified t hat whil e the g roup wa s g ather ed in the parking lot, a freig ht train approa ched on the middle trac k. The train was moving eastbound, from their left to their rig ht, steadily at approximately 10 miles per hour and never stopped. Acc ording to plaintiff, the g roup orig inally intended t o wa i t for the train to pass, and cross the trac ks to rea ch Wey er’ s house. Howeve r, afte r a few minutes, plaintiff, Spindler, and Wey er beg an walking toward the trac ks. They stepped onto the railroa d rig ht-of-w ay

. Plaintiff and Sp in d ler decide d

on the spur-of- the-moment to jump onto the train. Plaintiff had never befor e at t em p t ed to jump aboar d a moving train, and he had never seen anyone succe ssfully do so. At that point, plaintiff’s motive for jumping on the t rain was not to cross the tra cks to g o any wher e else

. Rather, plaintiff was focuse d solely on t ry ing to impress his friends, espec ially Van Wit zenburg , his girlf

riend at that time. ¶ 8 Plaintiff testified that Spindler attempted to jump o nto the train first. Spindler tried to
g rab a ladder o n t h e s i d e of a moving box car , but he was unsucce ssful and stepped awa y from the train. Plaintiff then attem p t ed to jump onto the train three times. On his first attempt, plaintiff stood flat-f ooted on the g round and g rabbe d a ladder

. At the time, he was only approximately 4 fee t 10 inc hes tall. H e was able to grab the bottom rung of the ladder with his rig ht hand. Howeve r, the ladder bent his fing ers backw ards and he pulled his hand back. On his second attempt, plaintiff ran along side the train and g rabbe d a ladder

. Howeve r, his shoes beg an to slip on the rocky roadbe d, forc ing him to let g o. On his third attempt, plaintiff g rabbe d hold of a ladde r with both hands and pulled his body up toward the train. He manag ed to put his rig ht foot on the ladder

. Plaintiff testified that he does not rec all what happene d next whil e he w as on the tra in. ¶ 9 Edg ar and Gunder son eac h testified that the g irls wer e scre aming at plaintiff to stop what

-3-he was doing and g et awa y from the train. Gunder son and Van Wit zenburg eac h testified that plaintiff slipped from the ladder and fell down. Van Wit zenburg further saw his left foot fall under a train whe el. ¶ 10 Plaintiff reme mbere d waking up on the g round and tr y i n g u n s u cc es s fu l l y t o stand. Plaintiff’s left foot had be en seve red a bove the toes. ¶ 11 Au s t i n P at t o n testified that he saw the children in the parking lot, shortly befor e t h e

acc ident. Patton testified that he wa tched a s the boy s approa ched the moving train. One of the boy s tried to grab a ladder on the side of a box car , but he was knoc ked down and made

no further attempt to jump on the train. The other boy
, whom Patton identifie d as plaintiff, continued trying to jump on the train. Patton saw plaintiff’s one h an d l o s e its g rip on the ladder
, such that the moving train “swung him [pl aintiff] around so his back was to the train. He we nt down and his—his foot went up over that rail.” ¶ 12 Patton was approximately 50 fee t from plai n t i ff an d Spindler when they beg an their attempts to jump on the train. Patton y elled at the boy s to stay awa y from the trac ks, but the train was so loud they could not hear him. Patto n t es t i fi ed : “So as I ’m making my way 1 towards him is when—is when I saw what happene d.” P atton ran ove r and pulled pla intiff

awa y from the moving train. Patton saw that plaintiff “lost the tip of his foot at an ang le.” He instructed a friend who was with him to run back to his apar tment, telephone 911, and bring back towels. Patton e levated plaintiff’s leg
, cover ed it with the towels, and flag g ed down a

near by ambulance

. ¶ 13 Dr. Andre a Kr am er , p l ai n t i ff’s o rt hopedic surg eon, testified that plaintiff’s injury

nece ssitated an amputation b elow the knee, rathe r than closer to the ankle, beca use “ther e was no skin left on his hee l or his foot, so it was the best option.”

¶ 14 B. Proc edura l Ba ckg round ¶ 15 On Marc h 1 6
, 2 0 0 5
, p l ai n t i ff filed the instant second amende d complaint. Plaintiff alleg ed, inter alia
, that defe ndants failed to: adequa tely fenc e the are a; p reve nt minor children from acc essing trains or the railroa d trac ks; post war ning signs, or otherwise war n of the dang er of trains; and monitor the are a in the vicinity of the train and railroa d trac ks to preve nt children fr om ga ining a cce ss thereto.

Spi ndl er , V an Wi tzenbu rg, Edgar and Gunde rs on eac h te st if ie d tha t the tr ai n was st at ion ar y 1 when the y gather ed in the par king lot

. Spi ndl er te st if ie d tha t pla int if

f had cl imbed ont o the st at ion ar y tr ai n, but the t r a i n j o l t e d for war d, whic h thr ew pla int if f off and cau sed his inj ury. However, V an Wi tzenbu rg, Edgar, and Gunder son eac h test if ie d that the tr ai n had begun to m ove bef ore pla int if

f
at te m pte d to gr a b a b o x car la dde r. Pla int if f himsel f te st if

ie d tha t he and his fr ie nds saw the tr ai n app roa ch and st ead il y m ove pas t the m , nev e r s t oppi ng. Als o, pla int if f’ s own exp er t, Dr. Wi ll ia m Ber g, te st if

ie d: “Someone m ent ion ed at some poi nt, one of the youngster s, tha t the y re cal l the tr ai n at some poi nt bei ng st oppe d. But I thi nk the re ’s no que st ion it was m oving.” Fur the r, Car l Bra dle y,

a ra il roa d acc ide nt con sul ta nt, te st if ie d re gardi ng the tr ai n’s event re cor der
, wh i c h i s s imila r to a “bl ack box” on an ai rpl ane

. Acco rdi ng to Bra dle y’s te st imony
, the event re cor der ind ic at ed tha t the
tr ai n was m oving at t he t ime of t he a cci den t.

-4-¶ 16 Def endants moved for summary judgme nt, contending they did not owe plaintiff a leg al duty beca use: (1) jump i ng onto a moving fre ight train is an obvious dang er to children of plaintiff’s ag e; and (2) based on his discovery deposition, plaintiff subjectively appre ciated the dang er. The circ uit court initially g rante d defe ndants’ motion, but on rec onsideration,

vacated the summary judgme nt. The court found that whether the dang er of jumping onto a moving fre ight train is so obvious as to prec lude any duty owed by defe ndants to plaintiff is a question of f

act f or the jury

. ¶ 17 T h e t ri al adduce d the above- rec ited evidenc e. The jury returne d a verdic t in fav o r o f plaintiff. The j u ry assessed plaintiff’s damage s in the amount of $6.5 milli on, but reduc ed that amount to $3.9 milli on afte r finding that plaintiff was 40% compar atively neg lige nt. The circ uit court subsequently enter ed judg ment on the ver dict in the amount of $3,875,000. 2 ¶ 18 Def

endants timely filed a posttrial motion pursuant to section 2-1202(b) of the Code of Civil Procedur e (735 I L CS 5/2-1202(b) (West 2002)). Def endants reque sted a judgme nt non obstante vere d i ct o (n. o

. v. )
, asser ting that: (1) they did not owe plaintiff a duty to protec t ag ainst the possibili ty that he might injure himself by confr onting an obvious dang er, and (2) plaintiff’s alleg ed reme dy for eliminating the dang erous co n d i t i o n was not rea sonable. Alternatively
, defe ndants reque sted a new trial. The circ uit court denied defe ndants’ posttrial

m otion. The appellate court aff irmed the judgme nt of the circ uit court. 2011 I L App (1st ) 100209. ¶ 19 Def

endants appea l to this court. We g rante d the I llinois Trial L awyers Association leave
to submit an amicus curiae brief in support of plaintiff. We also g rante d the Association of Americ an Railro ad s , the Chicag o Transit Authority
, and the Northea st I llinois Reg ional Commut er Railroad Corporation (Metra ) leave to submit an amici curiae brief in support of defe ndants. I ll. S. C t. R. 345 (eff. Sept. 20, 2010)

.

¶ 20 I I . ANALYSI S ¶ 21 Def

endants contend that they are entitled to a judgme nt n.o.v. , which is proper ly g rante d only wher e all of the evidenc e, when viewed in its aspec t most favor able to the opponent, so

overwhelmingly favor s the movant that no contra ry verdic t based on that evidenc e could ever stand. Pedrick

v. Pe oria & Eastern R.R. Co.
, 37 I ll. 2d 494, 510 (1967). An adve rse r uling

on a mot ion for a judgme n t n .o.v. is revie wed de novo

. Evans v. Shannon
, 201 I ll. 2d 424, 427 (2002). In other words, the revie wing court applies the same Pedrick standard as did the circ uit court. Harris v. Thompson , 2012 I L112525, ¶ 15. ¶ 22 Def

endants contend that they are entitled to a judgme nt n.o.v. beca use they had no duty
to protec t ag ainst the pos sibili ty that plaintiff m ight injure himself confr onting an obvious dang er. To succe ed in an action for neg lige nce, the plaintiff must establish that the defe ndant owed a duty to the plaintiff, that defe ndant b re ac h ed t hat duty
, and that the brea ch proxi mately cause d injury to the pl aintiff. Rhodes v. Illinois Central Gulf R.R.
, 1 7 2 I l l

. 2d

T he cou rt set off agains t the j ury’s awar d a $25, 000 set tl ement pla int if f re cei ved fr om 2

ano the r named def

end ant , the Burl ingto n Nort her n and Sant a Fe Rai lwa y Com pan y, whic h ope ra te d the tr ai n.

-5-213, 227 (1996). A leg al duty ref ers to a relationship betwee n the defe ndant and the plaintiff such that the law imposes on the defe ndant an obligation of rea sonable conduct fo r t he benef it of the plaintiff. Isebe rg v. Gross
, 227 I ll. 2d 78, 87 (2007); Kirk v. Micha el Ree se Hospital & Medic al Center
, 117 I ll. 2d 507, 525 (1987). Absent a duty
, “no rec overy by the plaintiff is possible as a matter of law.” Vesey v. Chicago Housing Authority
, 145 I ll. 2d 404, 411 (1991); acc ord Mt. Zion State Bank & Trust v. Consolidat ed Communications, Inc.
, 169 I ll. 2d 110, 116 (1995) (same)

. The exis tence of a duty under a particula r set of circ umstances is a question of law for the court to decide

. Buche leres v. Chicago Park District
, 171 I ll. 2d 435, 445 (1996); Vesey
, 145 I ll. 2d at 411. Where a plaintiff has obtaine d rec overy ag ainst

a defe ndant based on neg lige nce, and if the defe ndant did not owe the plaintiff a duty
, then

a judgme nt n.o.v. in favor of the defe ndant is require d. W ashington v. City of Chicago
, 188 I ll. 2d 235, 238-39 (1999); see Fris v. Personal Products Co.
, 255 I ll. App. 3 d 916, 923 (1994).

¶ 23 A. Premises L iability : No Duty to Trespa ssers ¶ 24 Pursuant to the theory of premises lia b i l i t y , an o wn er o r occupie r of land (he rea fter landowner) owes a duty of rea sonable car e under the circ umstances to all entra nts upon the premises e x cept to tre spassers. Rhodes , 172 I ll. 2d at 227-28. In the ca se at ba r, the pa rties
ag ree that plaintiff, Spindler, and Wey er beca me t re s p assers when they stepped onto the railroa d rig ht-of-w ay

. See 625 I L CS 5/18c-7503(1) (a) (i) (West 2002) (I llinois Vehicle Code providing that no unauthorized person is permitted to “wa lk, ride, drive or be upon or along the right of wa y o r ra i l y ar d of a rail carrie r wit hin the S tate, at a place other than a public crossing ”). ¶ 25 At common law, the g ene ra l ru l e i s t h at a landowner is under no duty to maintain the premises for the safet y o f trespasse rs, whether they are adults or children. Kahn v. Jame s Burton Co.
, 5 I ll. 2d 614, 625 (1955); Darsch v. Brown
, 332 I ll. 592, 595-96 (1928). Indeed,

a landowner owes no duty of rea sonable car e to a dult or child trespasse rs, except to r efr ain from wi l l fu l l y and wantonly injuring them. Mt. Zion State Bank
, 169 I ll. 2d at 116; see Marcov itz v. Herge nrether
, 302 I ll. 162, 167 (1922). This g ener al rule applies when the 3 premises is a railroa d rig ht-of-w ay

. See Illinois Central R.R. Co. v. Eicher
, 202 I ll. 556, 560 (1903); Benamon v . Soo Line R.R. Co. , 294 I ll. App. 3d 85, 89 (1997); Hock ing v. Duluth, Missabe & Iron Range Ry. Co.
, 117 N.W.2d 304, 309-10 (Minn. 1962) (“It ha s never been the rule t h at a ra ilway company is require d to make its land, rig hts-of-wa y , trac ks, and trestles a safe playg round for children. *** The railwa y company is not an insurer of the lives or limbs of children who ma y stray or play upon its premises.”).

¶ 26 1. Child Trespasser Ex ception ¶ 27 Courts have rec og nized a number of exceptions to the rule of no duty of rea sonable c are

I n the cas e at bar
, pla int if f did not al le ge any wil lf

ul and want on m is con duc t on the par t of 3 def end ant s.

-6-to trespasse rs. Rhodes
, 172 I ll. 2d at 229. One such exception perta ins to children. Pursuant

to Kahn and its prog eny , the law imposes a duty upon a landow n er to exercise rea sonable

car e to reme dy a dang erous condition on the premises, or to otherwise protec t children from injury resulting from the dang erous condition, wher e: (1) the landowner knew or should have known that children habitually fre quent the proper ty ; (2) a defe ctive structure or dang erous condition was prese nt on the proper ty ; (3) the defe ctive structure or dang erous condition was likely to injure children beca use they are incapa

ble, based on age an d maturity
, of
appre ciating t h e ri s k involved; and (4) the expense and inconvenienc e of reme dying the defe ctive structure or dang erous condition was slight when compar ed to the risk to children. Mt. Zion Stat e Bank

, 169 I ll. 2d at 116-17; Kahn , 5 I ll. 2d at 625. ¶ 28 Kahn es t ab l i s h ed t he fore seea bility of harm to children as the corne rstone of liability

. Corc o r a n v. V

illage of Libertyville
, 73 I ll. 2d 316, 325-26 (1978); Kahn
, 5 I ll. 2d at 625. Where the above elements are satisfied, harm to children is deeme d sufficie ntly fore seea ble for the law to impose a duty of rea sonable car e upon the landowner

. Corcoran
, 73 I ll. 2d at 32 6

. Al so, Kahn “brought I llinois law into harmony with section 339 of the Restatement (Second) of Torts.” Id

. (citing Restatement (Second) of Torts § 339 (1965))

. In the case at bar, defe ndants contend that the third and fourth elements have not been satisfied as a matter of law, the reby

prec luding imposition of a duty of re asonable car e owe d to plaintiff.

¶ 29 Obviousness of Dange r ¶ 30 At sever al junctures in the case at bar, including defe ndants’ posttrial motion, def endants contende d that whether the dang er of the moving train was obvious to plaintiff was a matter of law for the circ uit court to decide

. Howeve r, the court reje cted this c ontention wheneve r it was raised. For ex ample, rejecting defe ndants’ mot ion for a direc ted verdict at t he close of plaintiff’s case in chief
, the court stated: “The jury is g oing to make that deter mination.” In aff irming the judgme nt of the circ uit court, the appellate court held that plaintiff’s act of j u m p i n g aboar d a slow-moving fre ight train was not an obvious dang er that children o f plaintiff’s g ener al ag e and experien ce can be expected to appre ciate as a matter of law. Rather, the c ourt held that the issue was one of fa ct for the jury to determine. 2011 I LApp (1st) 100209, ¶ 59. ¶ 31 We disag ree

. This court has repe atedly explained that a landowner has a duty to r emedy

a dang erous condition on the premises wher e the condition is likely to cause injury to the
g ener al class of children who, by rea son of their ag e and immaturity
, would not be expected
to compre hend and av o i d t h e att endant risks. Cope v. Doe
, 102 I ll. 2d 278, 286 (1984); Corcoran
, 73 I ll. 2d at 326. Howeve r, it is equally settled that a landowner has n o duty to

reme dy a dang erous condition if it p re s en t s o bvious risks that children g ener ally of the plaintiff’s age woul d b e ex pecte d to appre ciate and avoid. This court has rea soned: “since children are expected to avoid dang ers which are obvious, there is no rea sonably fore seea ble risk of harm. The law then is that fore seea bility of harm to the child is the test for assessing liability ; but there can be no rec overy for injuries cause d by a dang er found to be obvious.” Cope
, 102 I ll. 2d at 286; acc ord Logan v. Old Enterprise Farms, Ltd.
, 139 I ll. 2d 229, 236-37 (1 9 9 0 ); Corcoran
, 73 I ll. 2d at 326. Whil e cer tainly there are latent dang ers that childre n

-7-would not appre ciate due to their minority
, a landowner “is fre e to rely upon the assumption

that any child old enoug h to be allowed at larg e by his pare nts will appre ciate cer tain obvious dang ers or at l east make his own i ntellige nt and responsible choice conce rning them.” Mt. Zion Stat e Bank, 169 I ll. 2d at 117. ¶ 32 “In I llinois , obvious dang ers include fire, dr owning in water
, or falling from a height.” (Emphasis added.) Mt. Zion State Bank
, 169 I ll. 2d at 118 (c o l l ec t ing authorities). We observe that this is not a

n exclusive list. Rather, there are “ many dange rs *** which under ordinary conditions may

rea sonably

be expected to be fully

understood and a

pprec iated by
any child of an ag e to be allowed at larg e.” (Emphasis added.) Restatement (Second) of Torts § 339 cmt. j ( 1965). Our a ppellate c ourt long ag o held that it was not the duty of a r ailroad
t o k eep watch and war

n boy s not to jump onto its car s beca use jumping from the gro u n d
upon a moving fre ight train is dang erous, and all men and all ordinarily intelligent boy s know it to be so. Fitzgerald v. Chicago, Burlington & Quincy R.R. Co. , 114 I ll. App. 118 (1904) (12-year -old plaintiff); LeBeau v. Pittsburgh, C., C. & St. L. Ry. Co.
, 69 I ll. App. 557 (1897) (10-year -old plaintiff). Fur ther, the weig ht of authority from jurisdictions acr oss the country 4

rec og nizes that a moving train prese nts a dang er that is so obvious that any child allowed at larg e ca n rea sonably

be expected to apprec iate the risk involved in coming within the are a made dang erou s by it. See Holland v. Baltimore & Ohio R.R. Co.
, 431 A.2d 597, 602-03 (D.C. 1981) (collec ting case s); McKinney v. Hartz & Restle Realtors, Inc.
, 510 N.E.2d 386, 389-90 (Ohio 1987) (collec ting cases ); R es t atement (Second) of Torts § 339, Appendix, Reporter ’s Notes, at 133-34 (1966) (collect i n g case s); Wade R. Habe eb, Annotation, Railroad’s Liabil ity for Injury to or Death of Child on Moving Train Other Than As Paying or Proper Passenge r , 35 A.L .R.3d 9 (1971). ¶ 33 In the case at bar, the appellate court acknow ledg ed the above- cited persua sive authority
, but was not guided by it beca use the co urt considere d La Salle National Bank v. City of Chicago
, 132 I ll. App. 3d 607 (1985), and Engel v. Chicago & North W estern Transport ation Co.
, 186 I ll. App. 3d 522 (1989), to be dispositi ve. 2011 I L App (1st) 100209, ¶¶ 51, 60. In

eac h case , the appellate court aff irmed a jury verdic t in favor of a minor plaintiff despite the defe ndant’s contention that hopping a moving train was dang erous as a matt er o f law. In Engel
, the court reasoned: “The policy deter mination that most children are presumed to know the ris k s of injury inhere nt in cer tain ty pes of activities, such as playing with fire or playing in bodies of water , does not per se extend to the train-f lipping case s.” Engel
, 186 I ll. App. 3d at 531. In La Salle
, the court simply rea soned that “the jury made no specific finding that plaintiff ‘appr eciated the risk’ in jumping on a moving fre ight train.” La Salle
, 132 I ll. App. 3d at 615. ¶ 34 We note that the rea soning express ed i n L a S a l le and Engel is inconsistent with the principles enunciated by this court in both Cope and Corcoran

. In any neg lige nce action, the
court must first deter

mine as a matter of law whether the defe ndant owed a duty to the plaintiff. See Isebe rg , 227 I ll. 2d at 87; Anderson v. W oodlawn She ll, I

nc. , 132 I ll. App. 3d

Appel la te cou rt dec is i o n s f i l e d pri or to 1935 have no bin din g aut hor it y, and can onl y be 4

con si der ed p er sua si ve. Rei che rt v. Co urt of Cla ims , 203 I ll . 2d 257, 262 n.1 (20 03)

.
-8-580, 582 (1985). Fur ther, the re q u i re m en t of an open and obvious dang er is not mere ly a matter of the plaintiff’s contributory neg lige nce, or the parties’ compar ative fault, but rathe r a lack of t he def

endant’ s duty

owed to the c hild. Buche leres v. Chicago Park District , 171 I ll. 2d 435, 447 (1996); Mt. Zion Stat e Bank, 169 I ll. 2d at 117-18. The e x istence of a duty

nece ssarily subsumes the question of whether the dang er of a particula r condition should be obvious to children of the plaintiff’s ag e. Where there is no dispute about the phy sical nature of the condition, whether a dang er is ope n and obvious is a question of law. See W ilfong v. L.J. Dodd Con s t ruction
, 401 I ll. App. 3d 1044, 1052-53 (2010); Belluomini v. Stratford Gree n Condominium Ass’n
, 346 I ll. App. 3d 687, 691-93 (2004). In Mt. Zion S t a t e Bank
, which involved the subsumed issue of obviousness, this court made it clea r that the exis tence of a duty is a question of law, which must be resolved by the court. Mt. Zion State Bank
, 169 I ll. 2d at 116. In the case at bar, the circ uit court should have considere d in the first instance the obviousness of the dang er of moving trains as i t relates to the foresee able risk of harm to plaintiff. ¶ 35 Corcoran and Cope wer e controlling authority when the appellate court decide d La Salle and Engel

. I f a ditch, as in Corcoran
, 73 I ll. 2d at 328, and a partially frozen rete ntion pond,

as i n Cope
, 102 I ll. 2d at 289, prese nted obvi ous dang ers that children ge nera lly woul d b e expected to rec og nize, then surely “ ‘the noise and appea ranc e of a hug e, rumbling, string of railroa d car s’ ” is such an obvious dang er. See McKinney , 510 N.E.2d at 389-90; Holland
, 431 A.2d at 603 (both quoting Herrera v. Southern Pacific Ry. Co.
, 10 Cal. Rptr. 575, 580 (Cal. Dist. Ct. App. 1961)). This court long ag o rec og nized that Kah n and its prog eny harmonized I llinois law with t h e gener al principles expressed in section 339 of the Restatement (Second) of Torts. Corcoran
, 73 I ll. 2d at 326. Persuade d by the Fitzgerald and LeBeau decisions of our appellate court, in harmony with the majority of jurisdictions, we

now expli citly rec og nize as a matter of law that a moving train is an obvious dang er that any child allowed at larg e should r ealize the risk of coming within the are a made dang erous by it. La Salle National B a n k v. City of Chicago
, 132 I ll. App. 3d 607 (1985), and Engel v. Chicago & North W

estern Transport ation Co.
, 186 I ll. App. 3d 522 (1989), ar e h er eb y

overr uled. ¶ 36 We observe that during his case in c hief, plaintiff te stified as follows:

“Q. Now, while y ou wer e standing there g rabbing for these [box car ] ladder s, what wa s g oing thr oug h y our mind?
A. I thought that I was going to g et on t he tra in, ride it for a couple of fee t, and then I was g oing to g et off, a

nd ever y thing would be fine.”
On redire ct, plaintiff was asked: “And as y ou stood there
, did y ou have any thought that y ou might lose y o u r l eg as a result of g rabbing on that ladder ? ” Plaintiff answe red: “Not a thought whatsoever.” ¶ 37 Ba sed on this and other testimony
, the appellate court rea soned that the rec ord conta ined conflicting evidenc e as to whether plaintiff appreciated t he full risk of harm at the t ime he

was injured, there by prec luding a judgme nt n.o.v. in favor of defe ndants. 2011 I L App (1st) 100209, ¶¶ 65- 66. ¶ 38 We disag ree . This court has e x plained as f ollows:

-9-“T h e issue in case s involving obvious dang ers, like fire, water or height, i s no t whether the child does in fac t understand, but rathe r what the [ l an d owner ] may

rea sonably expect of him. [C itations.] The test is an objective one, g rounded partially in the notion that pare nts bear the p ri m ar y re sponsibili ty for the safe ty of their children. Stated ag ain, wher e a child is permitted to be at larg e, beyond the watchf ul
ey e of his pare nt, it is reasonable to expe ct that t h at ch i l d can appre ciate cer tain particula r dang ers.” (Emphasis in orig inal.) Mt. Zion State Bank
, 169 I ll. 2d at 126- 27.
Fur ther, knowle dg e of the obvious dang er, or appre ciation of the risk, does not require the clairvoyance to fore see the prec ise injury which in fac t occur red. See Shull v. Harristown Townshi p , 223 I ll. App. 3d 819, 826-27 (1992) ; Alston v. Balt imore & Ohio R.R. Co. , 433 F. Supp. 553, 569 n.102 (D.D .C. 1977). ¶ 39 I t has never been part of our law that a l an d o wner may be liable to a trespasse r who
proce eds t o wa n t o n ly expose himself to unmistakable dang er in total disreg ard of a fully understood risk, simply for the thrill of the venture

. Alston
, 433 F. Supp. at 570. We conclude that the third element of the ch i l d t re s p as ser exception to the no-duty rule has not been satisfied.

¶ 40 Expe nse of Reme dying Dangerous Condition ¶ 41 W e co m p l ete our analy sis of defe ndants’ duty to plaintiff by considering whether th e expense and inconvenienc e of reme dying the dang erous condition is slight when compar ed
to the risk to children. Mt. Zion State Bank
, 169 I ll. 2d at 116-17; Kahn
, 5 I ll. 2d at 625;

acc ord Restatement (Second) of Torts § 339(d) (1965). At trial, eac h side prese nted an expert witness who testified as to the relative burdens and benef its of ere cting fenc ing and related
structure s such as overpa sses to reme dy the risk of chil d re n jumping onto moving trains. Plaintiff’s expert testified that fenc ing betwee n Central and Ridge land Avenue s would suffice
, while defe ndants’ expert testified that fe n cing would have to be ere cted along the entire rig ht-of-w ay

. The appellate court conclude d that pl ai n t i ff’s expert testimony was sufficie nt for the jury to find t h at plaintiff’s proposed reme dy would have preve nted his injury
, which prec ludes a judgme nt n.o.v. in favor of defe ndants. 2011 I L App (1st) 100209, ¶¶ 68- 84. ¶ 42 We disag re e. Aga i n , t h e ex i s t en ce o f a duty “is entirely a question of law, to be deter mined by ref

ere nce to the body of statutes, rules, principles and prec edents which make
up the law; and it must be deter mined only by the court. I t is no part of the province of a jury ***.” Prosser a

nd Kee ton on Torts § 37, at 236 (W. Page Kee ton et al. eds., 5th ed. 1984). This issue is an element of the analy sis rec og nized by Kahn and its prog eny , in acc ord with section 339 of the Restatement (Second) of Torts. I f the test is satisfied, a duty of rea sonable

car e to a tre spassing child is imposed on a landowner . Absent this, the landowner owes no such duty

. Ag ain, this duty deter mination is a question of law for the court and not for a jury

. Mt. Zion Stat e Bank

, 169 I ll. 2d at 116. ¶ 43 Courts have g ener ally answe red in the neg ative t h e q u es t i on whether the expense and inconvenienc e of reme dying this dang erous condition is slight when compar ed to the risk to

-10-children. “A railro ad co m p an y does not have a duty to fenc e its proper ty to preve nt trespassing children from boarding its moving trains.” Frazee v. St. Louis-San Francisco Ry. Co.
, 549 P.2d 561, 565 (Ka n. 1976); acc ord Holland
, 431 A.2d at 603 n.11 (collec ting

case s); Alston
, 433 F. Supp. at 559 n.28 (collec ting case s); Wade R. Habe eb, Annotation, Railroad’s Liabil ity for Injury to or Death of Child on Moving Train Other Than As Paying or Proper Passenge r , 35 A.L .R.3d 9, § 4(a) ( 1971). Courts have e ssentially explained that if a duty wer e imposed on a railroa d to ere ct a fenc e wher e one acci d en t o cc u rr ed, the railroa d “would likewise be subject to the duty of fe ncingthe innumera

ble place s along its
many miles of trac ks fre quented by trespassing children.” Dugan v. Pennsylv ania R.R. Co.
, 127 A.2d 343, 348 (P a. 1956). We hold that I llinois law does not impose any such require ment. See Illinois State Trust Co. v. Terminal R.R. Ass’n of St. Louis
, 440 F.2d 497, 501 (7th Cir. 1971) (a

pplying I llinois law). ¶ 44 We rea ch thi s conclusion even consid er i n g p laintiff’s own testimony

. Plaintiff and his friends paid no attention to the exis ting fenc e seg ments; they paid no attention to the posted

war ning sign; they wer e not even trying to g et to the other side of the trac ks. Rather, plaintiff admitted that he was try

ing to imp re s s h i s friends. No fenc e would have preve nted such brava do. See, e.g. , Nolley v. Chicago, Milwaukee, St. Paul & Pacific R.R.
, 183 F.2d 566, 569 (8th Cir. 1950). ¶ 45 In sum, beca

use pl aintiff was a trespa sser, de fenda nts owed him no duty of reasonable

car e, except t o re frain from willfully and wantonly injuring him, which plaintiff does not alleg e. Be cause plaintiff was a child, Kahn and its prog eny provide an exception to the “no duty ” rule, and would impose on defe ndants a duty of rea sonable car e toward plaintiff, if its require d elements wer e satisfied. This deter mination of defe ndants’ duty is a question of law for the court; the cir cuit and appellate courts committed reve rsible err or in viewing defe ndants’ duty

to plaintiff as an is sue of fac t for the jury to deter mine. We hold that this exception is not available to plaintiff. I t is alway s unfortunate when a child g ets injured while playing, but the responsibility for a child’s safe ty lies primarily with his pare nts, whose duty it is to see that the child does not e ndang er himself. Driscoll v

. C. Rasm ussen Corp.
, 35 I ll. 2d 74, 79 (1966). Thus, a s a matter of law, def endants did not owe pla intiff a duty

. ¶ 46 Be cause defe ndants did not owe plaintiff a leg al duty
, we hold that they wer e entitled to

a judgme nt n. o

. v. S ee W

ashington
, 188 I ll. 2d at 238-39. There fore
, the judgme nts of the appellate and circ uit courts are reve rsed without rema nd. See Harris
, 2012 I L 112525, ¶ 26. Acc ording ly
, we need not addre ss defe ndants’ alternative contention that they are entitled to

a new trial.

¶ 47 I I I . CONCL USI ON ¶ 48 For the foreg oing rea sons, the j udg ments of t he appellate court and the circ uit court of Cook County

are reve rsed.

¶ 49 J udg ments reve rsed.

-11-Dissenting Op inion Upon Denial of Rehear ing

¶ 50 CHI EF JUSTI CE KI L BRI DE, dissenting : ¶ 51 Al though I initially joined in the opinion in this case , I believe that plaintif f p re s en t s arguments in his petition for rehe aring that war rant this court’s consideration. In particula r, I ag ree with plaintiff’s contention that the opinion contra venes the public policy established by this court in Kahn v. Jame s Burton Co. , 5 I ll. 2d 614 (1955). ¶ 52 In Kahn
, this court rec og nized the g ener al rule that a landowner has no duty to keep the
proper ty safe for tre spassers of

any ag e. Nonetheless, we rec og nized in Kahn an exception
to this rule that applied to trespasse rs who are child re n wh en t he proper ty contained a dang erous structure or condition. Specifica lly
, this court held that the law imposes a duty on

a landowner “to exercise due car e to reme dy the [dange rous] condition or otherwise protec t the childre n from injury

resulting from it.” Kahn , 5 I ll. 2d at 625. ¶ 53 The child trespasse r exception rec og nized by this court in Kahn is applicable when: (1)

a landowner knows, o r s h o u l d k now, that children habitually fre quent the proper ty ; (2) a defe ctive structure or dang erous condition exis ts on the proper ty ; (3) the defe ctive structure

or dang erous condition is likely to injure children beca use they are incapa

ble of appre ciating the risk involved based on their ag e and immaturity ; and (4) the expense and inconvenienc e of reme dying the defe ctive structure or dang erous condition is slight compar ed to the risk to children. Ultim ately
, this court ex plained that t h e ra t ionale underlying the child trespasse r exception, and there fore j u s t ifying the imposit ion of liability on the landowner for a child trespasse r’s injuries, is “the f orese eability

of har m to the child.” Kahn , 5 I ll. 2d at 625. ¶ 54 I n a later decision, we reiter ated that Kahn “esta blished the fore seea

b i l i t y o f h ar m t o children as the corne rstone of liability .” Corcoran v. Village of Libertyville , 73 I ll. 2d 316, 325-26 (1978). Subsequently
, the child trespasse r exception, g rounded in the fore seea bility of harm to children, has become settled law in I llinois

. Corcoran
, 73 I ll. 2d at 325; Feldsche r

v. E& B, Inc.
, 95 I ll. 2d 360 (1983); Cope v. Doe
, 102 I ll. 2d 278 (1984); Mt. Zion State Bank &Trust v. Consol idated Communications, Inc. , 169 I ll. 2d 110 (1995). ¶ 55 I n t h i s case , it is undisputed that plaintiff was a child trespasse r and that defen d an t ’s
proper ty contained a dang erous condition, na mely
, a moving train. Thus, a straig htforwa rd application of Kahn means that defe ndant had a duty to “to exercise due car e to reme dy the condition or otherwise protec t [pl aintiff] from injury resulting from it.” Kahn
, 5 I ll. 2d at 625. ¶ 56 The court’s decision here
, howeve r, rea ches the opposite conclusion. I t conclude s, inter alia
, that defe ndant owed plaintiff no duty
, and holds, f or the first time by this court, that a moving trai n i s a p er se obvious dang er that poses a risk that any child allowed at larg e should apprec iate. Supra ¶¶ 35- 36. ¶ 57 I n my opinion, as plaintiff argues in his petition for rehe aring
, this court’s hold i n g i s clea rly err oneous under the undisputed fac ts of this case and contra dicts our core holding in Kahn—the basis for imposing liability under the child tresp as s er exception is “the fore seea bility of harm to the child.” Kahn
, 5 I ll. 2d at 625; Corcoran
, 73 I ll. 2d at 325-26. Her e, the uncontested fac ts es t ablish that defe ndant railroa d company knew that children, including the plaintiff, wer e regularly and repe atedly tres p as s ing on its proper ty

. These

-12-trespassing children attempted to board moving trains and climb over, or throug h, trains. In

other words, not only was it fore seea ble t o defe ndant that children wer e trespassing and
eng ag ing in da

ng erous conduct that could har m the m, but defe ndant had actual knowledge of the situation. Indeed, defe ndant volu n t ar i l y t ook steps to preve nt children from trespassing , albeit unsucc essfully

. ¶ 58 A lt

h o u gh I ll in ois law exempts landowner s from protec ting ch il d tr e s p a s s e r s f r o m o b v io u s risks and dang ers on the proper ty , until this decision, this court rec og nized only three per se examples of an o b v i o u s dang er—f ire, drowning in water , and falling from a heig ht. Supra ¶ 32 (citing Mt. Zion State Bank
, 169 I ll. 2d at 118). After considering the fac ts of this

case , Ino longe r believe that this court should add a movingtrain to that list. ¶ 59 I emphasize that defe ndant here had actual knowledge that children wer e trespassingon its prope rty and interac ting with moving trains. On these fac ts, howcan this cour t possibly conclude that defe ndant could not fore see harm to children? I f Kah n ’s rec og nition of the child trespasse r exception is truly based on “for esee ability of harm” t o children, this court must reconsider

its decision here

. ¶ 60 There are countless miles of railroa d trac ks in I llinois
, including commuter lines in our densely populated urban and suburban are as. Our decision here eff ectively absolves landowner s of any liability when trespassing children are injured by a moving train on their
proper t y , even when the landowner has actua l knowledg e of the situation. In other words, landowner s are now fre e to ig nore c ompletely trespassing children who may be subjec ting themselves to serious phy sical har m throug h foolish interac tions with a moving train. ¶ 61 The opinion claims that “we now explicitl y rec og nize as a matter of

law that a moving train i s an obvious dang er that any child allowed at larg e should rea liz e the risk of coming within the are a made dang erous by it,” but that statement leave s many unanswe red questions. What constitutes a “moving ” train under our new rule? Does it matter how fast or how slow
t h e train i s moving? What if the t rain is moving only one mi le per hour and a child is hu rt while trying to “ beat the tr ain” a cross the tra cks? ¶ 62 Fur

thermore
, what does the phrase “any child allowed at larg e” mean? Does it only apply
to minors under 18? What about individuals, children or adults, with limit ed mental capa city

or mental h ea l t h i s s u es? Does our holding mean that children who are allowed to roam outside by neg lige nt pare nts no longe r have any protec tion under th e law for open and obvious dang ers? ¶ 63 Finally , what is to limi t an extension of this decision to other moving obje cts that pose obvious dang ers, such as moving trucks, buses, or other vehicles? All of these unanswe red questions reve al that the issue in this case is more complicated that I ini t i al l y t houg ht and should not be subject to a brig ht-line rule. In addition, by ignor ing undisputed evidenc e that the proper

ty owner had actua l knowl edg e that children wer e trespassing and subjecting themselves to harm from a moving train, this court’s decision here contra dicts the foundation of our holdingin Kahn that focuse d on “for esee ability of har m to children.” ¶ 64 Ultimately
, these concer ns sug g est to me that, as the lowe r cour ts simi larly

conclude d, the questi on of whether a moving train is an open and o b v i o u s dang er, thereby prec luding

a finding of a leg al duty
, prese nts too many potential complicated fac tual scena rios for this

-13-court to decide as a matter of law. Indeed, this c ourt has rec og nized that “[t] he exis tence of

an open and obvious dang er is not a p er s e bar to finding that a defe ndant who owns, occupie s or controls land has a duty to exercise rea sonable car e.” Jack son v. TLC Associates, Inc.
, 185 I ll. 2d 418, 425 (1998). I believe when, as oc curr ed her e, a landowner has actual knowledge that children are trespassing and subjecting themselves to injury from a moving train, the law should impose a duty on that landowner t o ex er cise rea sonable car e. Acc ording ly
, I would allow plaintiff’s petition for rehe aring to rec onsider our holding here

.

-14-