                         ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




             Choate v. Indiana Harbor Belt R.R. Co., 2011 IL App (1st) 100209




Appellate Court           DOMINIC CHOATE, Plaintiff-Appellee, v. INDIANA HARBOR
Caption                   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.



District & No.            First District, First Division
                          Docket No. 1–10–0209


Filed                     June 27, 2011
Modified on denial of     August 1, 2011
rehearing
Held                       Defendant railroad’s motion for judgment n.o.v. was properly denied in
(Note: This syllabus an action for the injuries the minor plaintiff suffered when his attempt
constitutes no part of the to jump aboard a slow-moving freight train ended with the loss of his
opinion of the court but leg below his knee, notwithstanding the railroad's contention that
has been prepared by the attempting to jump aboard the train was an open and obvious danger for
Reporter of Decisions for which the railroad owed plaintiff no duty, since the evidence did not so
the convenience of the overwhelmingly favor defendant that no contrary verdict could stand,
reader.)                   there was conflicting evidence as to whether plaintiff subjectively
                           appreciated the danger, and the evidence as to whether proposed
                           improvements to the right-of-way would have prevented plaintiff’s
                           injuries did not overwhelmingly favor the railroad.
Decision Under            Appeal from the Circuit Court of Cook County, No. 03–L–12237; the
Review                    Hon. William J. Haddad, Judge, presiding.


Judgment                  Affirmed.
Counsel on                     Fedota Childers, P.C. (David R. Schmidt and George H. Brandt, of
Appeal                         counsel), Mayer Brown, LLP (Michele Odorizzi, of counsel), both of
                               Chicago, and Mayer Brown, LLP, of Washington, D.C. (Evan M. Tager
                               and Brian J. Wong, of counsel), for appellants.

                               Hall Prangle & Schoonveld, LLC, of Chicago (Hugh C. Griffin, of
                               counsel), Sandberg Phoenix & von Gontard, PC, of Edwardsville
                               (Philip J. Lading, A. Courtney Cox, and Anthony L. Martin, of counsel),
                               Association of American Railroads (Louis P. Warchot and Daniel
                               Saphire, of counsel), Shook Hardy & Bacon, LLP (Mark A. Behrens
                               and Christopher E. Appel, of counsel), Washington Legal Foundation
                               (Daniel J. Popeo and Richard A. Samp, of counsel), all of 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), both of Chicago, for
                               appellees.

                               Rubin Machado & Rosenblum, Ltd., of Chicago (Richard J. Rosenblum,
                               of counsel), for amicus curiae.


Panel                          JUSTICE ROCHFORD delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Hall and Justice Hoffman concurred in the judgment
                               and opinion.



                                                 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


               1
                   Plaintiff was 18 years old at the time of trial and had reached the age of majority.

                                                      -2-
     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 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

                                               -3-
     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 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


                                                -4-
       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 fingers were bent backwards and he was forced to pull his hand back.
       Plaintiff testified that the bending of his fingers did not cause him any pain.
¶ 11       Plaintiff testified that on his second attempt, he ran alongside the train and grabbed the
       ladder. However, his shoes began slipping on the rocks, and so he was again forced to let go.
       Plaintiff testified that as he was running, he was able to keep up with the train and that, “if
       [he had] wanted to, [he] would have been able to pass the ladder that [he] was initially trying
       to get onto.”
¶ 12       Plaintiff testified that on his third attempt, he grabbed hold of the ladder with both hands
       and pulled his body up. His right foot stepped onto the ladder. Plaintiff testified he does not
       recall what happened next; his next memory is of waking up on the rocks. Plaintiff tried to
       stand up, but his knee bent backwards and he fell back to the ground. Plaintiff looked down
       and saw that his left foot had been severed. Alisa testified that plaintiff’s injury occurred
       during his third attempt to jump on the train. Alisa stated that during that attempt, plaintiff
       slipped off and his left foot went under the train’s wheel.
¶ 13       Plaintiff testified that a man named Austin came over to help him, and then an ambulance
       arrived and took him to the hospital. Surgeons amputated his left leg “a couple inches below
       [his] knee.”
¶ 14       Austin Patton testified that on July 30, 2003, he walked out the back door of his
       apartment at 5818 107th Court Way in Chicago Ridge and saw a group of grade-school boys
       and girls in the parking lot. Two boys were standing in a grassy area near the train tracks. A
       freight train traveling about 10 miles per hour was going by on the second track. Mr. Patton
       yelled at the boys to stay away from the tracks, but the train was so loud that they could not
       hear him. The boys approached the train and one of the boys tried to grab onto a ladder on
       the side of the train. He was knocked down, after which he made no further attempt to grab
       hold of the ladder. The other boy (whom he later identified as plaintiff) gripped onto the
       ladder and was pulled to the right. Plaintiff lost his grip, fell down, and the train ran over his
       foot. As a result, plaintiff “lost the tip of his foot at an angle.” Mr. Patton ran over, pulled
       plaintiff off the tracks and put a towel over his leg, and told a nearby person to call 911. He
       also flagged down a nearby ambulance. Mr. Patton also testified that prior to July 30, 2003,
       he had seen children alongside the railroad tracks all the time, and he had observed children
       cross the railroad tracks in both directions.
¶ 15       Steve Trnka, a firefighter/paramedic employed by Chicago Ridge, testified he had lived


                                                  -5-
       in Chicago Ridge until he was 18 years old, and during that time he had at least twice crossed
       the tracks where plaintiff was injured. When he was in high school in the 1980s, it was a
       pretty common occurrence for children to cross the tracks. Mr. Trnka testified that on July
       30, 2003, he arrived at the scene shortly after 5:30 p.m. and saw that plaintiff’s foot had been
       severed. Mr. Trnka gave plaintiff oxygen, started an IV, and provided him with nitrous oxide.
       Mr. Trnka then drove plaintiff to the hospital.
¶ 16        Plaintiff testified he had crossed the railroad tracks at 107th Street one time prior to July
       30, 2003. Also, in November 2002, plaintiff had been stopped by IHB police for being on
       railroad property near Austin Avenue in Chicago Ridge. The officer warned plaintiff that he
       could get hurt on railroad property and his mother also lectured him to stay away from
       railroad trains and tracks. Plaintiff further testified that his mother had warned him over a
       dozen times prior to July 30, 2003, that he should stay away from railroad trains and railroad
       tracks.
¶ 17        Plaintiff’s mother, Vickie Choate, testified she received a letter from the IHB police
       sometime between 1998 and 2000, informing her that plaintiff had been discovered on the
       railroad tracks. In response, Ms. Choate warned plaintiff to stay away from trains or
       otherwise he was going to get hurt. Ms. Choate testified she had warned plaintiff against
       being around trains on other occasions and had told him he could get hurt by a train and that
       somebody she knew from her childhood had lost both of his legs from a train accident.
       Plaintiff testified, though, that although his mother warned him that railroad trains and tracks
       were dangerous, she never told him he could get killed or that he could lose an arm or a leg
       as a result of a train accident. Plaintiff denied that his mother gave him graphic warnings
       about how badly he might be hurt by a train accident.
¶ 18        Plaintiff testified he agreed that the definition of “dangerous” is “something that could
       kill you or take a body part.” Plaintiff agreed that, by this definition, his attempt to board a
       moving freight train traveling 9 to 10 miles per hour was a dangerous thing to do. However,
       plaintiff testified that at the time he was attempting to board the moving train, he did not
       know he was doing something dangerous; he only knew it was dangerous after he had been
       injured. Plaintiff testified that as he was attempting to jump on the train, he thought he “was
       going to get on the train, ride it for a couple of feet, and then [he] was going to get off, and
       everything would be fine.”
¶ 19        Plaintiff’s answers to deposition questions regarding his recognition of the dangerousness
       of the train and train tracks were admitted for impeachment purposes. We will discuss those
       questions and answers in detail later in this opinion.
¶ 20        Victor Barks testified he is the chief of the IHB police department, which patrols IHB
       property to prevent theft and vandalism. IHB established a “three strikes” program whereby
       if an officer saw a pedestrian on railroad property outside of a designated crossing area, the
       officer filled out a contact card and contacted the pedestrian’s parents by letter if he was
       younger than 18 years of age. In a given year, IHB officers wrote out over 1,000 contact
       cards. If the pedestrian under the age of 18 was caught a second time on railroad property
       outside of a designated crossing area, the IHB police called the parents and sent them a
       second letter. If the same pedestrian was caught committing a third such violation, a police


                                                  -6-
       officer from the village or city where the violation occurred then wrote up a citation and the
       pedestrian was required to “go into the court system.” Chicago Ridge was one of the villages
       that participated in IHB’s three strikes program.
¶ 21        Charles Rice, a former special agent for the IHB police department, testified that pursuant
       to the three strikes program, a contact card for plaintiff was filled out on November 7, 2002.
       The contact card stated that plaintiff was on the service road just west of Austin Avenue and
       that he had been warned and released. Mr. Rice testified that a letter would have been sent
       to plaintiff’s parents informing them that plaintiff had been found on railroad property.
¶ 22        James Griffith, a special agent for the IHB police department, testified he initiated the
       Operation Lifesaver program, whereby he visited schools within walking distance of the
       railroad and talked to boys and girls about railroad safety. Pursuant to the Operation
       Lifesaver program, Mr. Griffith visited schools in Chicago Ridge and informed the kids that
       they should not trespass on railroad property or jump on or cross through trains. Mr. Griffith
       testified that pursuant to the three strikes program, he had filled out contact cards for children
       he had observed crossing through a standing train in the general area where plaintiff was
       injured. Mr. Griffith had stopped and warned children under the age of 13 for catching rides
       on trains. Over the years, Mr. Griffith had seen approximately 50 children catching such rides
       on trains.
¶ 23        Plaintiff’s expert, Dr. William Berg, Ph.D., testified to what defendants reasonably could
       have done to prevent plaintiff from being injured. Dr. Berg first explained he had received
       a Ph.D. in civil engineering from the University of Illinois and had been a professor of civil
       engineering at the University of Wisconsin for 28 years. Civil engineers are involved with
       the planning, design, and operation of public works facilities. Dr. Berg’s particular specialty
       is transportation. His master’s thesis addressed safety at railroad highway grade crossings,
       and he has published over 60 papers of which a large percent dealt with railroad issues,
       including causal factors associated with train collisions.
¶ 24        Dr. Berg testified that for 15 to 20 years he served on a committee of the Transportation
       Research Board of the National Academy of Sciences studying rail highway grade crossing
       safety. The focus of the committee was to minimize collisions between trains and motor
       vehicles or trains and pedestrians. To do so, the committee examined the nature of the usage
       of crossings, as well as people’s knowledge, attitudes, and behavior patterns. The committee
       examined the effectiveness of warning devices and engineering improvements, with the
       objective of learning more about these systems so as to attain higher levels of safety. Dr.
       Berg has been retained by numerous railroads over the years on matters like the one at bar.
¶ 25        Dr. Berg testified that plaintiff was injured on tracks running between Central Avenue
       and Ridgeland Avenue. The tracks at this location are almost 6,000 feet in length (a little
       over one mile) and contain no crossing for vehicles or pedestrians. Dr. Berg noted there are
       schools and homes on each side of the tracks and he opined that people are going to want to
       cross the tracks on foot or by bicycle to visit their friends and go to school, as well as to visit
       two nearby parks containing baseball diamonds and tennis courts. Dr. Berg reviewed
       discovery in the case that supported his opinion, noting that at the location of plaintiff’s
       injuries, railroad police had issued an average of 15 tickets per year for a six-year period to


                                                  -7-
       persons crossing the tracks outside of a public crossing. Dr. Berg also reviewed deposition
       testimony from young people in the area who testified they were crossing the tracks on a
       somewhat regular basis. Further, part of a fence had been rolled back so as to allow
       pedestrians to approach and cross the tracks.
¶ 26       Dr. Berg opined that “[t]here’s absolutely no question that young people are regularly
       crossing the tracks along this 6,000-foot corridor” to visit friends, schools, and parks on the
       other side. Since there is no designated place to cross the tracks other than the two main
       arterials that are 6,000 feet apart, Dr. Berg noted that people are going to cross at the
       intermediate points. Dr. Berg further testified that “young people and trains don’t mix” and
       that from an engineering standpoint, one wants to provide some separation between the areas
       where people congregate and the area where the trains are located.
¶ 27       Dr. Berg opined that the corridor between Central Avenue on the east and Ridgeland
       Avenue on the west, which included the area where plaintiff was injured, was not reasonably
       safe for children because there were no established crossing points for a very long distance.
       That “puts them in conflict with trains.” Even though IHB conducted Operation Lifesaver
       educational programs and issued tickets to trespassers, further engineering efforts were
       needed to accommodate the demand of pedestrians to cross the tracks.
¶ 28       Dr. Berg opined that a public facility was needed to accommodate pedestrians and
       bicyclists. Such a facility would consist of either an at-grade crossing with appropriate
       warning devices, or a grade separation such as “a ramp that goes up high enough and then
       an overpass over the tracks and a ramp coming back down.” To encourage pedestrians to use
       this established crossing point, they would be “channelize[d]” with appropriate fencing that
       would discourage them from crossing at other points. Dr. Berg testified that an overpass
       would be more effective than an at-grade crossing because pedestrians can traverse an
       overpass regardless of whether or not a train is present.
¶ 29       Dr. Berg testified he would construct the overpass at Austin Avenue, because that
       location is midway between Central Avenue and Ridgeland Avenue. An overpass at Austin
       Avenue would provide relatively convenient access for people who want to go from the
       neighborhood north of the tracks to the schools to the south. Dr. Berg testified that once the
       overpass at Austin Avenue is constructed, the railroads should monitor the extent to which
       pedestrians continue to climb over and under the fence and cross the tracks near the site of
       where plaintiff was injured. If pedestrian traffic at that site remains high, then another
       overpass there should be considered.
¶ 30       Dr. Berg testified he was not suggesting that defendants should put up a fence around all
       of the “miles and miles of right-of-way.” Rather, the fencing should be put up along the
       6,000-foot corridor between Central Avenue and Ridgeland Avenue because the pedestrians
       in that area demonstrated a clear demand to travel from one side of the tracks to the other in
       order to access schools, houses, and parks. Such fencing would channel the pedestrians to
       the centrally located Austin Avenue crossing point, thereby serving to promote and advance
       safety in this corridor.
¶ 31       Dr. Berg opined that more likely than not, plaintiff would not have been injured had there
       been fencing which channeled pedestrians to a centrally located Austin Avenue crossing


                                                -8-
       point. The reason is that plaintiff and his friends originally had intended to cross the tracks
       to go to Steve’s house, but were prevented from doing so by the freight train. As there was
       no impediment to going close to the train, plaintiff approached the tracks and then made the
       ill-fated decision to jump aboard. Had there been fencing which channeled pedestrians to a
       crossing point at Austin Avenue, plaintiff and his friends likely would have crossed the
       tracks at Austin Avenue instead of waiting for the train to pass and deciding on the spur-of-
       the-moment to jump aboard.
¶ 32        Dr. Berg testified that as part of his work as an engineer, he had become familiar with the
       costs of constructing the proposed fencing and overpass. Dr. Berg testified that the cost of
       constructing a six-foot chain-link fence along both sides of the corridor between Central
       Avenue and Ridgeland Avenue in the areas that do not have any fencing would be
       approximately $27,000. The cost of constructing an eight-foot chain-link fence would be
       approximately $37,500. An overpass at Austin Avenue would cost no more than $150,000,
       unless there also was a full gate installation at a highway crossing requiring track circuitry
       and electronics, which could cost approximately $250,000. However, Dr. Berg testified that
       such a full gate installation would not be necessary for an overpass at Austin Avenue.
¶ 33        Dr. Berg testified that an overpass at Austin Avenue would have to comply with the
       Americans with Disabilities Act (ADA) and other federal laws regarding making the
       overpass handicapped accessible and that the concurrence of the Illinois Commerce
       Commission (ICC) would need to be secured. Dr. Berg testified that compliance with the
       ADA, other federal laws, and the ICC would not significantly run up the costs because the
       designers of the overpass would be aware of and take into account the federal requirements
       and would know how to secure the requisite approvals from the ICC. Dr. Berg also testified
       that construction of an overpass at Austin Avenue would not impact waterways or wildlife
       environment in such a way as to add any significant costs to the project. Finally, Dr. Berg
       testified that to the extent an overpass at Austin Avenue would impact private property
       owners, the engineers for the project would talk to and work with the property owners to
       overcome any problems. Dr. Berg testified that in a similar situation in Madison, Wisconsin,
       he had been personally involved in routing a new bike path along a railroad right-of-way onto
       private property. The property owners there cooperated and did not pose any problems. Dr.
       Berg testified that, similar to the routing of the bike path in Madison, any problems
       associated with the overpass’s impact on private property owners here would also not be
       insurmountable.
¶ 34        Defendants’ expert, Carl Bradley, testified he was self-employed as a consultant with
       respect to railroad-related injuries and accidents. Mr. Bradley previously had been employed
       as a brakeman for a railroad from 1960 until 1966, as a conductor from 1966 to 1976, and
       eventually was promoted to terminal superintendent in 1979. Mr. Bradley later moved on to
       railroad management positions in Colorado, Texas, and California and then retired in 2000
       and became a consultant.
¶ 35        Mr. Bradley testified he disagreed with Dr. Berg’s opinion that chain-link fencing which
       channeled pedestrians to an overpass at Austin Avenue likely would have prevented plaintiff
       from being injured. Mr. Bradley noted the unlikelihood that the chain-link fence would
       remain intact throughout the 6,000-foot corridor between Central Avenue and Ridgeland

                                                 -9-
       Avene, as kids were likely to cut holes in the fence. Mr. Bradley opined that a big concrete
       or steel wall erected along the corridor would likely keep trespassers off the right-of-way, but
       he doubted the property owners would agree to the construction of such a wall considering
       that it would be so unsightly.
¶ 36       Mr. Bradley testified that Dr. Berg had underestimated the costs of constructing an
       overpass at Austin Avenue, and that he failed to sufficiently address whether the overpass
       would be ADA-compliant or whether local villages would support such a structure.
¶ 37       Mr. Bradley testified that before he retired in 2000, the city of Roseville, California,
       proposed building an ADA-accessible pedestrian overpass 25 feet above the railroad track.
       It had a roof on top and cost $7.5 million. On cross-examination, Mr. Bradley admitted that
       he had seen overpasses cost much less than $7.5 million.
¶ 38       Following all the evidence, 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. Defendants appeal. The American Tort Reform Association, the
       Association of American Railroads, and the Illinois Civil Justice League, Washington Legal
       Foundation, and Allied Educational Foundation filed amici curiae briefs in support of
       defendants. The Illinois Trial Lawyers Association filed an amicus curiae brief in support
       of plaintiff. The amici curiae briefs largely mirror the arguments of the parties they support.
¶ 39       First, defendants contend the circuit court erred in denying their motion for judgment
       notwithstanding the verdict because plaintiff’s act of jumping aboard a moving freight train
       presented an open and obvious danger for which defendants owed the minor plaintiff no duty
       of care. Judgments notwithstanding the verdict should be entered only when “all of the
       evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly
       favors [a] movant that no contrary verdict based on that evidence could ever stand.” Pedrick
       v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). The circuit court’s decision denying
       defendants’ motion for judgment notwithstanding the verdict is reviewed de novo. York v.
       Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006).
¶ 40       Plaintiff bears the burden of proving that defendants owed him a duty of care. Mt. Zion
       State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116 (1995). Prior
       to the supreme court’s decision in Kahn v. James Burton Co., 5 Ill. 2d 614 (1955), the
       “attractive nuisance” doctrine governed the duty of owners and occupiers of land (hereinafter
       referred to collectively as landowners) to a trespassing child who was injured on their
       premises. Cope v. Doe, 102 Ill. 2d 278, 285 (1984). Under the attractive nuisance doctrine,
       the defendant landowner was liable for injuries to the child caused by a condition that
       attracted him to the premises. Cope, 102 Ill. 2d at 285. The courts employed the fiction that
       the child was an invitee because defendant enticed the child to enter the premises by
       maintaining a condition that was attractive. Cope, 102 Ill. 2d at 285. Defendant owed a duty
       to take reasonable precautions protecting the child from injuries. Cope, 102 Ill. 2d at 285.
¶ 41       In Kahn, the supreme court rejected the attractive nuisance doctrine and held that the
       liability of landowners upon whose land a child is injured is determined with reference to the
       customary rules of ordinary negligence. Kahn, 5 Ill. 2d at 624. Generally, landowners owe
       no duty to keep their premises in any particular condition promoting the safety of persons


                                                -10-
       who come on the premises without invitation. Corcoran v. Village of Libertyville, 73 Ill. 2d
       316, 325 (1978). However, in Kahn, the supreme court recognized:
               “[A]n exception exists where the owner or person in possession knows, or should
               know, that young children habitually frequent the vicinity of a defective structure or
               dangerous agency existing on the land, which is likely to cause injury to them
               because they, by reason of their immaturity, are incapable of appreciating the risk
               involved, and where the expense or inconvenience of remedying the condition is
               slight compared to the risk to the children. In such cases there is a duty upon the
               owner or other person in possession and control of the premises to exercise due care
               to remedy the condition or otherwise protect the children from injury resulting from
               it. [Citation.] The element of attraction is significant only 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.” Kahn, 5 Ill. 2d at 625.
¶ 42       In Corcoran, 73 Ill. 2d at 326, the supreme court noted that Kahn brought Illinois law
       into harmony with section 339 of the Restatement (Second) of Torts, which states:
                    “A possessor of land is subject to liability for physical harm to children
               trespassing thereon caused by an artificial condition upon the land if
                    (a) the place where the condition exists is one upon which the possessor knows
               or has reason to know that children are likely to trespass, and
                    (b) the condition is one of which the possessor knows or has reason to know and
               which he realizes or should realize will involve an unreasonable risk of death or
               serious bodily harm to such children, and
                    (c) the children because of their youth do not discover the condition or realize the
               risk involved in intermeddling with it or in coming within the area made dangerous
               by it, and
                    (d) the utility to the possessor of maintaining the condition and the burden of
               eliminating the danger are slight as compared with the risk to children involved, and
                    (e) the possessor fails to exercise reasonable care to eliminate the danger or
               otherwise to protect the children.” Restatement (Second) of Torts § 339 (1965).
¶ 43       Thus, a duty is imposed on the landowner only if he “knows or should know that children
       frequent the premises and if the cause of the child’s injury was a dangerous condition on the
       premises.” (Emphasis in original.) Corcoran, 73 Ill. 2d at 326. A dangerous condition is “one
       which is likely to cause injury to the general class of children who, by reason of their
       immaturity, might be incapable of appreciating the risk involved.” Corcoran, 73 Ill. 2d at
       326. If both these prerequisites are met, the harm to children is deemed sufficiently
       foreseeable for the law to impel the landowner to remedy the condition. Corcoran, 73 Ill. 2d
       at 326.
¶ 44       However, the supreme court has held that Kahn imposes no duty on landowners to
       protect against conditions that pose obvious risks of danger that children would be expected
       to appreciate and avoid. Corcoran, 73 Ill. 2d at 326; Mt. Zion, 169 Ill. 2d at 117. “The
       rationale for this rule is that, since children are expected to avoid dangers which are obvious,


                                                  -11-
       there is no reasonably foreseeable risk of harm. The law then is that foreseeability of harm
       to the child is the test for assessing liability; but there can be no recovery for injuries caused
       by a danger found to be obvious.” Cope, 102 Ill. 2d at 286. “The exception for obvious
       dangers is ‘not merely a matter of contributory negligence or assumption of risk, but of lack
       of duty to the child.’ ” Mt. Zion, 169 Ill. 2d at 117-18 (quoting Prosser and Keeton on Torts
       § 59, at 409 (W. Page Keeton et al. eds. 5th ed. 1984)).
¶ 45       There is both an objective and subjective test for determining whether a danger is
       obvious to a trespassing child. Under the objective test, a danger is considered obvious to a
       trespassing child if “children of similar age and experience would be able to appreciate the
       dangers on the premises.” Salinas v. Chicago Park District, 189 Ill. App. 3d 55, 61 (1989).
       Under this test, any subjective inability of the trespassing child to appreciate the danger is
       not considered when a risk is deemed obvious to children generally. Salinas, 189 Ill. App.
       3d at 61.
¶ 46       Under the subjective test, a danger is considered obvious to a trespassing child if he has
       “some greater understanding of the alleged dangerous condition than would a typical minor
       of his age” that allows him to subjectively appreciate the full risk of harm. (Emphasis added.)
       Swearingen v. Korfist, 181 Ill. App. 3d 357, 362 (1989); see also Colls v. City of Chicago,
       212 Ill. App. 3d 904, 946 (1991); Hagy v. McHenry County Conservation District, 190 Ill.
       App. 3d 833, 840 (1989). The rationale comes from the following comments to section 339
       of the Restatement (Second) of Torts, which the Swearingen court found “persuasive”
       (Swearingen, 181 Ill. App. 3d at 362):
                “The purpose of the duty is to protect children from dangers which they do not
                appreciate and not to protect them against harm resulting from their own immature
                recklessness in the case of known and appreciated danger. Therefore, even though the
                condition is one which the possessor should realize to be such that young children are
                unlikely to realize the full extent of the danger of meddling with it or encountering
                it, the possessor is not subject to liability to a child who in fact discovers the
                condition and appreciates the full risk involved, but none the less chooses to
                encounter it out of recklessness or bravado.” (Emphasis added.) Restatement
                (Second) of Torts § 339, cmt. m, at 204 (1965).

¶ 47         I. Whether Plaintiff’s Act of Jumping Aboard the Moving Freight Train
                         Posed an Obvious Danger Under the Objective Test
¶ 48       First, defendants contend they are entitled to judgment notwithstanding the verdict
       because plaintiff’s act of jumping aboard the moving freight train traveling 9 to 10 miles per
       hour posed an obvious danger that children of plaintiff’s age and experience can be expected
       to appreciate as a matter of law. In support, defendants cite LeBeau v. Pittsburg, C., C. & St.
       L. Ry. Co., 69 Ill. App. 557 (1897), Fitzgerald v. Chicago, Burlington & Quincy R.R. Co.,
       114 Ill. App. 118 (1904), and Briney v. Illinois Central R.R. Co., 401 Ill. 181 (1948). In
       LeBeau, Leo LeBeau, who was 10 years and 5 months old, attempted to jump on a moving
       freight train of unidentified speed and fell under the wheel of one of the cars. LeBeau, 69 Ill.
       App. at 558. As a result, his right leg was required to be amputated. LeBeau, 69 Ill. App. at

                                                 -12-
       558. LeBeau, by his next friend, brought suit against the defendant railroad, alleging it was
       negligent in failing to warn him to keep away from the railroad crossing. LeBeau, 69 Ill. App.
       at 559. The court instructed the jury to return a verdict in favor of the railroad. LeBeau, 69
       Ill. App. at 558. The appellate court affirmed, holding as a matter of law that “[j]umping
       from the ground upon a moving freight train is dangerous, all men and all ordinarily
       intelligent boys ten years of age know it to be so.” LeBeau, 69 Ill. App. at 560. In Fitzgerald,
       12-year-old William Fitzgerald attempted to climb aboard a “slowly” moving freight train
       and fell in front of the wheels, causing his legs to be crushed so badly that they were required
       to be amputated. Fitzgerald, 114 Ill. App. at 119-20. Fitzgerald, by his next friend, brought
       suit against the defendant railroad. Fitzgerald, 114 Ill. App. at 120. At the close of
       Fitzgerald’s case, the circuit court instructed the jury to find the railroad not guilty.
       Fitzgerald, 114 Ill. App. at 120. The appellate court affirmed, noting that “[i]n [LeBeau],
       under similar circumstances we held that a boy ten years and five months of age, of ordinary
       intelligence, as we must presume from the evidence the plaintiff was, knows that it is
       dangerous to attempt to get on a moving freight train. Such is the law in this state, and we
       cannot depart from it.” Fitzgerald, 114 Ill. App. at 120-21. However, neither of these
       decisions is binding as they were decided prior to 1935 (LeBeau was 1897 and Fitzgerald
       was 1904). See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 95 (1996)
       (“[a]ppellate court decisions issued prior to 1935 had no binding authority”).
¶ 49        In Briney, Daniel C. Briney, who was eight years and nine months old, attempted to jump
       aboard a freight train moving at approximately four miles per hour but he slipped and fell in
       such a manner that his left leg was run over, requiring amputation. Briney, 401 Ill. at 184.
       Briney, by his next friend, brought suit on the theory that the defendant railroad impliedly
       invited him to come on its right-of-way and throw switches for its employees in exchange
       for gifts. Briney, 401 Ill. at 185. A jury returned a verdict in Briney’s favor for $35,000.
       Briney, 401 Ill. at 182. The supreme court reversed, holding that Briney’s effort to jump
       aboard the train had no connection with the alleged invitation and that he was a trespasser
       at the time of the injury. Briney, 401 Ill. at 187-88. The supreme court held that since Briney
       was a trespasser, the defendant railroad only owed him the duty not to wilfully and wantonly
       injure him. Briney, 401 Ill. at 186. No such duty was breached. Briney, 401 Ill. at 188-91.
¶ 50        Briney is not applicable here, as it was decided seven years before Kahn and as the court
       did not consider whether the defendant railroad owed the minor plaintiff a duty of care if his
       act of attempting to jump aboard the moving train was foreseeable, nor did it address whether
       the danger of such an act was so open and obvious as to negate any duty owed by the
       railroad.
¶ 51        We find two more recent cases, La Salle National Bank v. City of Chicago, 132 Ill. App.
       3d 607 (1985), and Engel v. Chicago & North Western Transportation Co., 186 Ill. App. 3d
       522 (1989), both decided subsequent to Kahn, to be dispositive. In La Salle, nine-year-old
       Charles Murphy was severely injured when he fell while climbing aboard a moving freight
       train of unidentified speed owned and operated by Consolidated Rail Corporation (Conrail),
       after gaining access to the railroad tracks by climbing through a hole in a fence constructed
       and maintained by the city of Chicago (the city). La Salle, 132 Ill. App. 3d at 609. The fence,
       which was erected pursuant to a contract between the city and Conrail’s predecessor,

                                                -13-
       separated the city’s land from that of the railroad. La Salle, 132 Ill. App. 3d at 611, 613. The
       city allowed the fence to remain in a state of disrepair despite its knowledge that children
       were using the hole in the fence to gain access to the railroad tracks. La Salle, 132 Ill. App.
       3d at 613.
¶ 52        Murphy brought suit against Conrail and the city alleging negligence and wilful and
       wanton conduct. La Salle, 132 Ill. App. 3d at 609. The jury found in favor of Conrail and the
       city as to wilful and wanton conduct, but found in favor of Murphy as to negligence and
       awarded him damages of $1,130,000. La Salle, 132 Ill. App. 3d at 609. The jury determined
       Murphy had been 18% negligent and reduced his damage award to $926,600. La Salle, 132
       Ill. App. 3d at 609.
¶ 53        On appeal, the city argued in pertinent part that the jury’s finding that Murphy was 18%
       comparatively negligent constituted a conclusive determination that he appreciated the
       danger of climbing aboard the moving train and therefore he should be precluded from
       recovering any damages. La Salle, 132 Ill. App. 3d at 615. The appellate court affirmed the
       jury award, holding that, under Kahn, the city owed Murphy a duty of ordinary care and that
       it was a jury question as to whether the city had breached that duty resulting in injury to
       Murphy. La Salle, 132 Ill. App. 3d at 615. The appellate court further held that the jury’s
       finding of 18% comparative negligence on the part of Murphy did not constitute a finding
       that he appreciated the risk involved in attempting to climb aboard a moving freight train.
       La Salle, 132 Ill. App. 3d at 615.
¶ 54        In Engel, 12-year-old John Engel filed suit against the Chicago Park District to recover
       damages for injuries he sustained when he jumped from a moving freight train traveling four
       or five miles per hour. Engel, 186 Ill. App. 3d at 524-25. Prior to the accident, Engel had met
       some friends at Hermosa Park, which was operated by the Chicago Park District. Engel, 186
       Ill. App. 3d at 525. The entire park was fenced, but for at least two years prior to Engel’s
       injury, the west side of the fence had a large hole extending from the top of the fence to the
       bottom which children and adults used as a short cut to gain access to railroad tracks
       bordering the west side of the park. Engel, 186 Ill. App. 3d at 525. The Chicago Park District
       failed to repair the hole in the fence, despite its knowledge of the hole’s existence and its
       awareness that children used the hole to gain access to the railroad tracks and to jump aboard
       and take short rides on the trains (a practice known as “flipping” the trains). Engel, 186 Ill.
       App. 3d at 525.
¶ 55        On the day he was injured, Engel and his friends decided to go to a nearby store for
       candy. Engel, 186 Ill. App. 3d at 527. The shortest route to the store was through the hole in
       the fence and over the railroad tracks. Engel, 186 Ill. App. 3d at 527. Engel noticed a train
       traveling four or five miles per hour. Engel, 186 Ill. App. 3d at 527. Engel got on a ladder
       on the side of the train and rode for approximately 30 feet before jumping off to join his
       friends. Engel, 186 Ill. App. 3d at 527. Engel spun around and fell and his left leg went under
       the train. Engel, 186 Ill. App. 3d at 527. Engel’s leg was amputated in the hospital. Engel,
       186 Ill. App. 3d at 527.
¶ 56        The jury returned a verdict in Engel’s favor for $5 million in compensatory damages.
       Engel, 186 Ill. App. 3d at 527. On appeal, the Chicago Park District argued it owed no duty


                                                -14-
       to Engel as a matter of law to protect him from the obvious danger of climbing aboard a
       moving train and, therefore, the case never should have gone to the jury. Engel, 186 Ill. App.
       3d at 528. Engel responded that although the supreme court has held that fire, drowning in
       water, and falling from a height are obvious dangers children reasonably may be expected
       to fully understand and appreciate (see Corcoran, 73 Ill. 2d at 327 (citing Restatement
       (Second) of Torts § 339, cmt. j, at 203 (1965))), the danger of jumping aboard a slow-moving
       train should not be presumed to be fully understood and appreciated by all children as a
       matter of law but, rather, should be individually assessed as questions of fact. Engel, 186 Ill.
       App. 3d at 528.
¶ 57       The appellate court agreed with Engel and affirmed the jury award. Citing La Salle as
       persuasive authority, the court held:
                “The main reason the case cannot be determined as a matter of law is that the
                ‘obviousness’ of the danger is not such that no minds could reasonably differ. The
                policy determination that most children are presumed to know the risks of injury
                inherent in certain types of activities, such as playing with fire or playing in bodies
                of water does not per se extend to the train-flipping cases. Under different facts than
                are present in this case, however, a judge could find that the danger was obvious to
                a plaintiff or that the landowner was unaware of the condition and find no duty
                existed as a matter of law.” Engel, 186 Ill. App. 3d at 530-31.
¶ 58       Defendants here argue that the present case presents those “different facts” supporting
       a finding as a matter of law that the danger from plaintiff’s jumping aboard the moving
       freight train was so objectively obvious as to preclude a duty on the part of defendants.
       Specifically, defendants point out that the train here was moving twice the speed of the train
       in Engel. Also, whereas Engel had seen people jump onto moving trains seven or eight times
       without incident (Engel, 186 Ill. App. 3d at 526), plaintiff here admitted he had never seen
       anyone successfully jump on a train and had in fact seen his friend Charlie Spindler try
       unsuccessfully to jump aboard the train only moments before his attempt. Also, plaintiff
       himself testified to his own two unsuccessful attempts to jump on the train prior to the third
       attempt leading to his injuries. Defendants contend that on these facts, they owed no duty as
       a matter of law because children of similar age and experience would appreciate the danger
       of attempting to jump aboard the moving freight train and, as such, that the circuit court
       should have granted their motion for judgment notwithstanding the verdict.
¶ 59       We disagree. Although the train was running twice as fast as the train in Engel, it still
       was traveling only 9 to 10 miles per hour. Plaintiff testified he was able to keep up with the
       train while running beside it, and that if he had wanted to, he could have run past the ladder
       hanging alongside. Plaintiff also testified that despite his small size, he was able to reach up
       and grab the ladder while standing flat-footed, which indicates he was not required to take
       a large leap in order to gain access thereto. Prior to plaintiff’s jump, Charlie put his hand out
       toward the train and then pulled it back in and (according to Mr. Patton) he fell down, but
       there was no testimony that Charlie was hurt in any way thereby. After Charlie stepped away,
       plaintiff then made two unsuccessful attempts to jump on the train prior to his injuries. On
       the first attempt his fingers struck the ladder and were bent back, but plaintiff testified “there
       wasn’t no pain or nothing.” On his second attempt, plaintiff ran alongside the train and

                                                 -15-
       grabbed onto the ladder, but he was forced to let go when his shoes began slipping on the
       rocks. There was no evidence that plaintiff was hurt thereby. Plaintiff was injured on his third
       attempt to jump aboard the freight train. The “obviousness” of the danger of jumping aboard
       a slow-moving, 9 to 10 mile per hour freight train that the not-yet 13-year-old plaintiff could
       outrun and which had caused neither him nor his friend harm in their previous attempts to
       board, and the ladder of which was within reach of the plaintiff while standing flat-footed,
       is not such that no minds could reasonably differ. Accordingly, we reject defendants’
       argument that they are entitled to judgment notwithstanding the verdict because plaintiff’s
       act of jumping aboard said freight train was an obvious danger that children of plaintiff’s
       general age and experience can be expected to appreciate as a matter of law. The issue was
       one of fact for the jury to determine; viewed in the light most favorable to plaintiff, the
       evidence does not so overwhelmingly favor defendants that no contrary verdict could stand.
       Defendants’ argument for judgment notwithstanding the verdict is unavailing.
¶ 60        Defendants cite cases in other jurisdictions holding as a matter of law that young children
       should objectively recognize the danger of attempting to jump aboard a moving train. See,
       e.g., Holland v. Baltimore & Ohio R.R. Co., 431 A.2d 597 (D.C. 1981) (and the cases cited
       therein); Restatement (Second) of Torts § 339, Appendix, Reporter’s Note, at 133-34 (1966)
       (and the cases cited therein). As there is Illinois authority on the point of law in question, we
       need not look to other states for guidance. Graham v. Commonwealth Edison Co., 318 Ill.
       App. 3d 736, 744 (2000).
¶ 61        Defendants cite a leading treatise, Prosser and Keeton on Torts § 59, at 407 (W. Page
       Keeton et al. eds. 5th ed. 1984), which observes that certain courts in other states have held
       that the peril of moving vehicles is a danger that children can be expected to understand as
       a matter of law. As discussed above, we need not look to out-of-state cases when there is
       Illinois authority on the point in question. Further, we note that another leading treatise, 1
       Dan D. Dobbs, The Law of Torts § 236, at 613 (2001), states:
                “The highest tradition of the common law requires justice according to the facts of
                the case, not according to a model of cases in general, and it is not beyond conception
                that some children would foreseeably be unable to appreciate the risk of moving
                trains, just as they are unable to appreciate the risk of other moving machinery.”
¶ 62        On the facts of the present case, it is not beyond conception 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. As discussed above, the
       issue was one of fact for the jury to determine; viewed in the light most favorable to plaintiff,
       the evidence does not so overwhelmingly favor defendants that no contrary verdict could
       stand. Accordingly, defendants’ argument for judgment notwithstanding the verdict fails.

¶ 63           II. Whether Plaintiff’s Act of Jumping Aboard the Moving Freight
                    Train Posed an Obvious Danger Under the Subjective Test
¶ 64      Next, defendants contend they are entitled to judgment notwithstanding the verdict
       because plaintiff subjectively appreciated the danger and full risk of harm from jumping
       aboard the moving freight train and therefore defendants owed him no duty of care. In

                                                 -16-
       support, defendants point to the following evidence: plaintiff’s mother had repeatedly warned
       him of the dangers of moving trains and had even told him that he could lose his limbs in a
       train accident; plaintiff had been caught trespassing on railroad property prior to July 30,
       2003, and had been warned to stay away by railroad police officers; the train that injured him
       was large and loud, further indicating to plaintiff its dangerousness and full risk of harm; Mr.
       Patton and several of plaintiff’s friends at the scene knew the danger of jumping aboard a
       moving train and warned him against approaching the train; and plaintiff’s first two attempts
       to jump on the train ended in failure. Defendants contend all this evidence indicates that
       plaintiff subjectively appreciated the danger and full risk of harm from jumping aboard the
       moving freight train, but that he recklessly disregarded the risk to impress Alisa. Defendants
       cite Restatement (Second) of Torts § 339, cmt. m, at 204 (1965), which states “the possessor
       is not subject to liability to a child who in fact discovers the condition and appreciates the
       full risk involved, but none the less chooses to encounter it out of recklessness or bravado.”
       Defendants contend they owed plaintiff no duty as a matter of law due to his subjective
       appreciation of the danger and full risk of harm from jumping aboard the moving freight train
       and, therefore, the circuit court should have granted their motion for judgment
       notwithstanding the verdict.
¶ 65       However, there was contrary evidence indicating plaintiff did not subjectively appreciate
       the danger and full risk of harm. 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,
       which he defined as “something that could kill you or take a body part”; he testified he only
       knew it was dangerous after the injuries occurred. Defendants contend that plaintiff was
       impeached with his deposition testimony in which he responded yes when asked whether he
       currently recognizes that “on the day of the accident” the train tracks were dangerous and that
       the train was dangerous. Plaintiff’s deposition testimony indicates only that plaintiff was
       aware at the time of the deposition (after he had suffered his injuries) that the train and the
       tracks were dangerous. The deposition testimony is unclear as to when plaintiff first
       recognized that the train and the tracks were dangerous, i.e., whether he recognized the
       danger before he was injured or whether he recognized the danger only after he was injured;
       thus, the deposition testimony does not clearly contradict his trial testimony that he was
       unaware of the danger and full risk of harm at the time of his injuries.
¶ 66       In addition, there was other evidence indicating that plaintiff did not subjectively
       appreciate the danger and full risk of harm at the time he was injured. Specifically, plaintiff
       testified, contrary to his mother’s testimony, that she never told him he could be killed or
       lose an arm or a leg as a result of a train accident. Plaintiff denied receiving any graphic
       warnings from his mother regarding how badly he might be hurt in a train accident. Plaintiff
       also testified he never heard the warnings from Mr. Patton or his own friends to stay away
       from the train. Finally, although plaintiff’s two previous attempts to jump aboard the train
       had been unsuccessful, he was not injured on either of these attempts. Plaintiff testified to
       his belief at the time he was injured that he would be able to jump on and off the train with
       no problems.
¶ 67       As there was conflicting evidence regarding whether plaintiff subjectively appreciated
       the danger and full risk of harm at the time he was injured, we cannot say that the evidence,

                                                  -17-
       when viewed in the light most favorable to plaintiff, so overwhelmingly favors defendants
       that no contrary verdict could ever stand. Accordingly, the circuit court did not err in denying
       defendants’ motion for judgment notwithstanding the verdict.

¶ 68   III. Whether Plaintiff Showed the Expense of Remedying the Dangerous Condition
                         Was Slight as Compared to the Risk to Children
¶ 69        Next, defendants contend the circuit court erred in denying their motion for judgment
       notwithstanding the verdict because plaintiff failed to prove that the expense or
       inconvenience of remedying the dangerous condition was slight compared to the risk to
       children. See Kahn, 5 Ill. 2d at 625. In particular, defendants contend that the testimony of
       plaintiff’s expert, Dr. Berg, was insufficient to establish this element of the Kahn test for
       three reasons: (1) Dr. Berg’s proposed improvements would not have prevented plaintiff
       from jumping aboard the train; (2) Dr. Berg’s proposed improvements are prohibitively
       costly, as they would require defendants to fence their entire right-of-way; and (3) Dr. Berg’s
       proposed improvements could not feasibly be implemented. We address each argument in
       turn.

¶ 70         A. Would Dr. Berg’s Proposed Improvements Have Prevented Plaintiff
                         From Jumping Aboard the Moving Freight Train?
¶ 71       Dr. Berg testified to the dangerous condition resulting from approximately 6,000 feet of
       tracks between Central Avenue and Ridgeland Avenue that contained no crossing for
       vehicles or pedestrians. Dr. Berg noted that young persons regularly were crossing along the
       6,000-foot corridor to access schools, homes, and parks. Dr. Berg opined that to prevent
       injury-causing collisions from occurring, engineering efforts were needed to accommodate
       the pedestrian demand to cross the tracks. Specifically, Dr. Berg opined that either an at-
       grade crossing or an overpass should be constructed at Austin Avenue, which was the mid-
       way point between the 6,000 feet of tracks, to provide convenient access for persons wanting
       to cross the tracks. Dr. Berg preferred an overpass because pedestrians would be able to cross
       the train tracks even if a train was passing by. Dr. Berg opined that fencing should be put up
       along the 6,000-foot corridor to “channelize” pedestrians toward the new crossing point at
       Austin Avenue and discourage them from crossing at other points.
¶ 72       Defendants argue that Dr. Berg’s proposed engineering improvements at most would
       have reduced the risk that persons would cross the tracks at an unauthorized location between
       Central Avenue and Ridgeland Avenue. Defendants argue that the engineering improvements
       “would have done nothing to abate the condition that injured [plaintiff], which was the ever-
       present risk that trespassing children would try to jump onto a moving train wherever they
       could gain access to the tracks.” (Emphasis in original.) Accordingly, defendants contend the
       circuit court should have granted them judgment notwithstanding the verdict.
¶ 73       We disagree. Dr. Berg noted that plaintiff’s original intent was to cross over the tracks
       to reach his friend’s, Steve’s, house on the other side, but that he was prevented from doing
       so by the passing freight train. While waiting for the freight train to pass, plaintiff


                                                -18-
       approached the tracks and made the spur-of-the-moment decision to jump aboard the train
       to impress Alisa. Dr. Berg testified that, more likely than not, plaintiff would not have been
       injured had there been fencing which channeled pedestrians to a centrally located crossing
       point at Austin Avenue, which would have allowed plaintiff to cross over the tracks instead
       of waiting around and then deciding to jump aboard the moving freight train. Defendants’
       expert, Mr. Bradley, disagreed with Dr. Berg’s opinion that chain-link fencing which
       channeled pedestrians to an overpass at Austin Avenue would have prevented plaintiff from
       being injured. However, it was the province of the jury to listen to the competing experts and
       weigh all the evidence (Bosco v. Janowitz, 388 Ill. App. 3d 450, 462 (2009)), and it
       obviously gave greater weight to Dr. Berg’s testimony. Viewed in the light most favorable
       to plaintiff (Pedrick, 37 Ill. 2d at 510), Dr. Berg’s testimony was sufficient for the jury to find
       that had there been fencing which channeled plaintiff to the Austin Avenue crossing point,
       he likely would have crossed there and gone to Steve’s house instead of deciding to jump
       aboard the moving freight train. Thus, defendants’ argument for judgment notwithstanding
       the verdict fails, as the evidence regarding whether Dr. Berg’s proposed improvements would
       have prevented plaintiff from jumping aboard the moving freight train did not so
       overwhelmingly favor defendants that no contrary verdict could ever stand.

¶ 74             B. Would Dr. Berg’s Proposed Improvements Require Defendants
                                to Fence Their Entire Right-of-Way?
¶ 75        Defendants next argue that to prevent children from jumping on trains, fencing would
       have to be constructed over the entire right-of-way, not merely the corridor between Central
       Avenue and Ridgeland Avenue, and that multiple overpasses “dotting the landscape” also
       would have to be constructed. Defendants contend such protective measures against train-
       hopping children would be wholly impracticable and costly and therefore that the circuit
       court here should have granted them judgment notwithstanding the verdict. Defendants cite
       Illinois State Trust Co. v. Terminal R.R. Ass’n of St. Louis, 440 F.2d 497 (7th Cir. 1971), in
       which seven-year-old David Land fell under the wheels of a railroad car while attempting to
       jump aboard a moving train of unidentified speed. Illinois State Trust, 440 F.2d at 498-99.
       Land brought a personal injury action against Terminal Railroad Association of St. Louis
       (Terminal). The circuit court entered a directed verdict in favor of Terminal. Illinois State
       Trust, 440 F.2d at 498. On Land’s appeal, the Seventh Circuit Court of Appeals affirmed,
       holding in pertinent part: “[t]he only methods of insuring that such injuries would not recur
       would be to fence the right-of-way at crossings where there is any likelihood of children’s
       presence or to construct an overpass or underpass or place a guard at all such crossings. We
       do not believe Illinois law imposes any such requirement.” Illinois State Trust, 440 F.2d at
       501.
¶ 76        In the present case, Dr. Berg never testified that defendants should be required to fence
       all their rights-of-way and to construct overpasses or underpasses at all crossings. Instead,
       Dr. Berg testified defendants would not have to put up a fence over all of the “miles and
       miles of right-of-way” but, rather, only along the 6,000-foot corridor between Central
       Avenue and Ridgeland Avenue in the areas that do not have any fencing. Dr. Berg reasoned


                                                  -19-
       that the 6,000-foot corridor posed a unique danger to children because it constituted over a
       mile of tracks without any type of crossing point, and that the demand for such a crossing
       was high given that travel across the tracks along that corridor was necessary to access
       schools, houses, and parks on the other side. Accordingly, Dr. Berg opined that an overpass
       at the midway point of the 6,000-foot corridor at Austin Avenue, coupled with fencing along
       the corridor channeling pedestrians to that crossing, would be sufficient to remedy the
       danger. Viewed in the light most favorable to plaintiff, Dr. Berg’s testimony was sufficient
       for the jury to find that the fencing and overpass would be limited to the 6,000-foot corridor
       and would not have to be replicated elsewhere along the right-of-way. Thus, defendants’
       argument for judgment notwithstanding the verdict fails, as the evidence regarding whether
       Dr. Berg’s proposed improvements would require defendants to fence their entire right-of-
       way did not so overwhelmingly favor defendants that no contrary verdict could ever stand.

¶ 77         C. Could Dr. Berg’s Proposed Improvements Feasibly Be Implemented?
¶ 78       Defendants next argue that the circuit court should have granted them judgment
       notwithstanding the verdict because there was no factual support for a finding that Dr. Berg’s
       proposed improvements along the 6,000-foot corridor feasibly could be implemented, much
       less that their expense or inconvenience would be slight. Specifically, defendants argue that
       Dr. Berg never had been involved in the design or construction of an overpass and had not
       provided a detailed design or cost estimate of the overpass he advocated; he had not settled
       on the basic design parameters of the overpass; he “brushed aside” planning issues such as
       compliance with the ADA and other accessibility requirements, the overpass’s environmental
       impact, its impact on traffic flow, land use, and other property owners, and the need to
       coordinate its construction with Chicago Ridge and Oak Lawn; he dismissed the notion that
       defendants would have difficulty securing permission from the ICC to build the overpass;
       he ignored the costs of acquiring easements or title from neighboring property owners; he
       failed to take into account the costs of maintaining the chain-link fence; and he dramatically
       understated the costs for installing fencing.
¶ 79       Review of Dr. Berg’s testimony indicates that he provided adequate factual support for
       his conclusions that the construction of fencing and an overpass at Austin Avenue feasibly
       could be implemented at a relatively low cost. Specifically, Dr. Berg testified to his work
       experience as a civil engineer specializing in transportation and his years of experience
       working to make railroad crossings safe. During his years of work as a civil engineer, Dr.
       Berg had become familiar with the costs of constructing the proposed fencing and overpass.
       Dr. Berg testified that the cost of constructing a six-foot chain-link fence along both sides
       of the 6,000-foot corridor in the areas that do not have any fencing would be approximately
       $27,000, and that the cost of constructing an eight-foot chain-link fence would be
       approximately $37,500. An overpass at Austin Avenue would cost a maximum of $150,000,
       unless there was also a full gate installation, in which case the cost would increase by
       $100,000; however, Dr. Berg testified that such a gate would not be required at Austin
       Avenue and so the cost would remain approximately $150,000. Contrary to defendants’
       arguments, Dr. Berg did not “brush aside” planning issues, but rather he testified to the need
       for the improvements to comply with the ADA and other federal laws as well as the need to

                                               -20-
       secure the concurrence of the ICC. Based on his experience, the costs of compliance with the
       ADA, other federal laws, and the ICC would not be significant. Also, contrary to defendants’
       arguments, Dr. Berg testified that the improvements would have negligible impact on the
       environment and that such an impact would not significantly increase the costs of the project.
       Dr. Berg further testified to the ability of engineers to work with property owners to
       overcome any problems, and gave as an example his personal experience routing a new bike
       path along a railroad right-of-way. Finally, Dr. Berg testified that he expected the
       maintenance of the fence to cost very little.
¶ 80       Defendants’ expert, Mr. Bradley, testified contrary to Dr. Berg that fencing which
       channeled pedestrians to an overpass at Austin Avenue likely would not have prevented
       plaintiff from being injured. Mr. Bradley also testified that Dr. Berg had underestimated the
       costs of constructing an overpass and he noted that a pedestrian overpass in the city of
       Roseville, California, had cost $7.5 million. On cross-examination, though, Mr. Bradley
       admitted that he had seen overpasses cost much less than $7.5 million.
¶ 81       The jury found Dr. Berg to be more credible than Mr. Bradley. We will not substitute our
       judgment therefor. Davis v. Kraff, 405 Ill. App. 3d 20, 37 (2010). Viewed in the light most
       favorable to plaintiff, Dr. Berg’s testimony enabled plaintiff to satisfy the Kahn test by
       providing a sufficient factual foundation for the jury to find that the proposed improvements
       along the 6,000-foot corridor between Central Avenue and Ridgeland Avenue feasibly could
       be implemented and that their expense or inconvenience would be slight as compared to the
       risk to children. Accordingly, as the evidence on this issue does not so overwhelmingly favor
       defendants such that no contrary verdict could ever stand, we affirm the denial of defendants’
       motion for judgment notwithstanding the verdict.
¶ 82       In their petition to reconsider, defendants argue that Dr. Berg made a mathematical error
       in estimating the cost of fencing. Dr. Berg testified that defendants should construct a 6- to
       8-foot-high fence along both sides of the 6,000-foot corridor in the areas that do not have any
       fencing. Dr. Berg also testified that the cost for installing the new chain-link fencing would
       be $18 per foot for a six-foot fence and $24 to $26 per foot for an eight-foot fence. Dr. Berg
       testified that this worked out to $27,000 for a six-foot fence and $37,500 for an eight-foot
       fence that would cover both sides (12,000 feet) of the corridor.
¶ 83       When defendants questioned Dr. Berg during cross-examination about his mathematical
       computations, he further testified that only approximately 25% of the corridor (3,000 feet)
       would require fencing. We note that, when the figures of $18 per foot for a six-foot fence and
       $24 to $26 per foot for an eight-foot fence are multiplied by 3,000 feet, they come out to
       $54,000 for a six-foot fence and between $72,000 and $78,000 for an eight-foot fence.
       Nobody performed this math for the jury, though, and Dr. Berg never specifically testified
       to any figures other than $27,000 and $37,500 as the respective costs for installing a six-foot
       or eight-foot fence along both sides of the corridor in the areas that do not have any fencing.
       During closing arguments, plaintiff specifically cited Dr. Berg’s testimony and stated that “he
       estimated *** that the cost of completing the fence for this corridor would cost somewhere
       between $27,000 and $37,000.” Defendants made no objections thereto.
¶ 84       Even if evidence had been presented to the jury that $54,000 and $72,000 to $78,000 are


                                                -21-
       more accurate estimates of the respective costs for installing a six-foot or eight-foot fence
       along both sides of the 6,000-foot corridor in the areas that do not have any fencing, our
       holding here would remain unchanged because the jury could find that such costs remain
       relatively slight compared to the risks to children if such fencing is not installed.
       Accordingly, we deny the petition to reconsider and affirm the denial of defendants’ motion
       for judgment notwithstanding the verdict.

¶ 85                   IV. Whether the Court Erred In Its Evidentiary Rulings
¶ 86        Next, defendants contend the circuit court erred in admitting a certain portion of
       plaintiff’s deposition testimony for impeachment purposes only instead of as a judicial
       admission. Judicial admissions are “ ‘deliberate, clear, unequivocal statements by a party
       about a concrete fact within that party’s knowledge.’ ” JPMorgan Chase Bank, N.A. v. Earth
       Foods, Inc., 238 Ill. 2d 455, 475 (2010) (quoting In re Estate of Rennick, 181 Ill. 2d 395, 406
       (1998)). Judicial admissions bind the party making them and cannot be controverted. Rath
       v. Carbondale Nursing & Rehabilitation Center, Inc., 374 Ill. App. 3d 536, 538 (2007).
       Where admissions at a pretrial deposition are deliberate, detailed and unequivocal as to a
       factual matter within the party’s personal knowledge, those admissions are conclusively
       binding on the party-deponent and he may not contradict them at trial. Van’s Material Co.
       v. Department of Revenue, 131 Ill. 2d 196, 212-13 (1989). Whether deposition testimony
       constitutes a judicial admission because it is unequivocal is a question of law subject to de
       novo review. Elliott v. Industrial Comm’n, 303 Ill. App. 3d 185, 187 (1999).
¶ 87        The pertinent portion of plaintiff’s deposition testimony is as follows:
                     “Q. [Defense attorney:] So you recognize train tracks as being dangerous;
                 correct?
                     A. [Plaintiff:] Yes.
                     Q. And you recognize that on the day of the accident the train tracks were
                 dangerous; correct?
                     A. Yes.
                     Q. And that the train that you were grabbing onto was dangerous?
                     A. Yes.”
¶ 88        Defendants contend this testimony constituted a judicial admission that, at the time he
       was injured, plaintiff subjectively appreciated the danger and full risk of harm in jumping
       aboard the moving freight train and, as such, that the circuit court erred in admitting said
       testimony for impeachment purposes only and allowing plaintiff to contradict his admission
       at trial.
¶ 89        Careful review of the questions asked, and the answers given, during the pertinent
       deposition testimony reveals that plaintiff made no admission as to his appreciation of the
       danger and full risk of harm at the time he was injured. As cited above, defendants asked
       plaintiff whether he “recognize[s]” that, on the day he was injured, the train tracks and train
       were dangerous; by posing the questions in the present tense, defendants were asking
       plaintiff about his current recognition (at the time of the deposition questioning) as to the

                                                -22-
       dangers of the train tracks and train. Plaintiff’s affirmative answers thereto only indicated his
       recognition, at the time of the deposition questions, that the train tracks and train posed a
       danger to him on the day of his injuries. Defendants never asked plaintiff whether he
       recognized the danger prior to his deposition testimony. Defendants also never specifically
       asked plaintiff whether he recognized the danger at the time he was injured, or whether he
       only recognized the danger after he was injured. Plaintiff’s testimony therefore does not
       constitute deliberate and unequivocal statements as to his subjective appreciation of the
       danger and full risk of harm in jumping aboard the moving freight train at the time he was
       injured. The circuit court did not err in admitting said testimony for impeachment purposes
       only, and not as a binding judicial admission.
¶ 90       As a result of our disposition of this issue, we need not address plaintiff’s argument that
       he made no judicial admission because defendants’ questions asked him to testify to
       conclusions regarding the “dangerousness” of the train tracks and train instead of to concrete
       facts within his knowledge.
¶ 91       Next, defendants contend the circuit court erred by failing to give the following special
       interrogatory proposed by defendants:
               “At the time and place of [plaintiff’s] accident, did he appreciate that attempting to
               jump onto a moving freight train presented a risk of harm to him?”
¶ 92       Section 2–1108 of the Code of Civil Procedure sets forth the law governing special
       interrogatories:
               “Unless the nature of the case requires otherwise, the jury shall render a general
               verdict. The jury may be required by the court, and must be required on request of
               any party, to find specially upon any material question or questions of fact submitted
               to the jury in writing. Special interrogatories shall be tendered, objected to, ruled
               upon and submitted to the jury as in the case of instructions. Submitting or refusing
               to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a
               question of law. When the special finding of fact is inconsistent with the general
               verdict, the former controls the latter and the court may enter judgment accordingly.”
               735 ILCS 5/2–1108 (West 2008).
¶ 93       The circuit court’s denial of a request for a special interrogatory is reviewed de novo.
       Hooper v. County of Cook, 366 Ill. App. 3d 1, 6 (2006).
¶ 94       The circuit court can refuse to submit a special interrogatory to the jury only where the
       interrogatory is in improper form. Hooper, 366 Ill. App. 3d at 6. A special interrogatory is
       in proper form where it relates to an ultimate issue of fact on which the rights of the parties
       depend and where an answer to the special interrogatory would be inconsistent with some
       general verdict that the jury might return. Hooper, 366 Ill. App. 3d at 6.
¶ 95       In the present case, the proposed special interrogatory was not in proper form because an
       affirmative answer thereto would not have been inconsistent with the general verdict in
       plaintiff’s favor. The special interrogatory asked the jury whether plaintiff appreciated that
       attempting to jump aboard the moving freight train presented “a risk of harm to him” at the
       time and place of the “accident.” However, as discussed earlier in this opinion, the relevant
       inquiry is whether plaintiff appreciated the “full risk” of harm involved in jumping aboard

                                                 -23-
       the moving freight train. See Restatement (Second) of Torts § 339, cmt. m, at 204 (1965);
       Swearingen, 181 Ill. App. 3d at 362; Colls, 212 Ill. App. 3d at 933. Plaintiff’s appreciation
       of the full risk of harm (i.e., death or dismemberment) from jumping aboard the moving
       freight train would have negated defendants’ duty toward him and therefore would have been
       inconsistent with the general jury verdict in his favor. However, plaintiff’s appreciation of
       some lesser risk of harm (e.g., falling and spraining his ankle) would not have similarly
       negated defendant’s duty toward him and would not have been inconsistent with the jury
       verdict in his favor. As the proposed special interrogatory only asked the jury whether
       plaintiff appreciated “a risk of harm” and not the “full risk of harm” from jumping aboard
       the moving freight train, the special interrogatory was not in proper form and the circuit court
       committed no error in refusing to give it to the jury.
¶ 96        Defendants argue that plaintiff failed to object below to the improper wording of the
       proposed special interrogatory, and as such that he has waived this argument on appeal. We
       disagree. Plaintiff is the appellee here, not the appellant. An appellant waives an issue by
       failing to raise it in the circuit court. Cooney v. Magnabosco, 407 Ill. App. 3d 264, 268
       (2011). However, “an appellee may raise any argument or basis supported by the record to
       show the correctness of the judgment below, even though he had not previously advanced
       such an argument.” In re Veronica C., 239 Ill. 2d 134, 151 (2010). Also, we can affirm the
       circuit court on any basis appearing in the record, regardless of the ground relied upon by the
       circuit court or whether its rationale was correct. Cooney, 407 Ill. App. 3d at 268. As
       discussed, the improper wording of the proposed special interrogatory prevented it from
       being in the proper form and supports the circuit court’s decision not to give it to the jury,
       and we affirm on that basis.
¶ 97        Next, defendants take issue with various other evidentiary rulings made by the circuit
       court regarding the admissibility of evidence. Review is for an abuse of discretion. Leonardi
       v. Loyola University of Chicago, 168 Ill. 2d 83, 92 (1995).
¶ 98        First, defendants contend the circuit court erred by barring them from questioning
       plaintiff’s friends who were with him on July 30, 2003, as to whether they knew that jumping
       aboard a moving freight train was dangerous. Defendants contend such testimony was
       relevant and admissible to show that children of plaintiff’s same general age and experience
       appreciated the danger of jumping on a moving freight train, as well as to show that plaintiff
       himself appreciated said danger. We find no abuse of discretion, as evidence of plaintiff’s
       friends’ knowledge of the dangers of jumping aboard the moving freight train was admitted
       at trial and argued to the jury. Specifically, the circuit court permitted plaintiff’s friend
       Brittany to testify that “all” the girls in the parking lot on July 30, 2003, yelled at plaintiff to
       stop “playing around” the train and to “come back down.” Brittany testified that she
       specifically yelled at plaintiff to “get off the f***ing tracks and don’t go by the f***ing
       train.” Brittany’s testimony indicated her own awareness, as well as the awareness of the
       other children at the scene, as to the dangerousness of jumping aboard the moving freight
       train. During closing arguments, defense counsel told the jury that the railroad’s message
       about the dangers of trains had gotten through to plaintiff’s friends. Thus, contrary to
       defendants’ argument here, the jury was adequately made aware of plaintiff’s friends’
       knowledge of the dangers of jumping on the moving freight train. The circuit court

                                                  -24-
        committed no abuse of discretion, and plaintiff suffered no prejudice, in the exclusion of any
        duplicative testimony concerning his friends’ knowledge of said danger.
¶ 99        Next, defendants contend the circuit court erred by admitting evidence of other incidents
        of children jumping onto moving trains about which plaintiff was totally unaware. The
        circuit court committed no abuse of discretion in admitting this evidence. Pursuant to Kahn,
        5 Ill. 2d at 625, plaintiff was required to prove that defendants knew young children
        habitually frequented their railroad tracks and that this presented a danger likely to injure
        them because they, by reason of their immaturity, were incapable of appreciating the risk of
        harm involved. To prove defendants knew young children habitually frequented their railroad
        tracks, the circuit court correctly permitted plaintiff to introduce evidence of numerous
        instances when IHB agents caught other children attempting to board trains. The fact plaintiff
        was unaware of these other incidents has no bearing on their admissibility into evidence on
        this point.
¶ 100       Next, defendants contend the circuit court erred in allowing Dr. Berg to testify about
        adolescent behavior, an issue about which he had no expertise. Specifically, defendants argue
        that the court improperly allowed Dr. Berg to testify that trains present a risk of harm to
        children due to their lack of maturity. Dr. Berg testified that his opinions regarding trains’
        risk of harm to children due to their lack of maturity is based on his work experience as a
        civil engineer “dealing with safety along railroad tracks” as well as his involvement with
        Operation Lifesaver personnel who go into the schools and explain railroad safety to
        children. Thus, Dr. Berg’s testimony was based on the expertise he developed over the
        course of his career specializing in transportation and safety-related issues. The circuit court
        committed no abuse of discretion by admitting Dr. Berg’s testimony as to the risk of harm
        trains posed to children due to their lack of maturity.
¶ 101       Defendants make cursory references to Dr. Berg’s testimony violating Rule 213 (Ill. S.
        Ct. R. 213 (eff. Jan. 1, 2007)) or otherwise constituting an inadmissible legal opinion
        invading the province of the circuit court. Defendants’ cursory references are insufficient to
        comply with Rule 341(h)(7)’s requirement that their brief contain arguments in support of
        their issues. See Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006). Accordingly, these issues are
        waived.
¶ 102       Next, defendants contend the circuit court erred in allowing Dr. Berg to testify on redirect
        examination about the effectiveness of IHB’s policing efforts, an issue about which he had
        no expertise. The circuit court committed no abuse of discretion where defendants opened
        the door during cross-examination when they questioned Dr. Berg about IHB’s policing
        efforts. See People v. Crisp, 242 Ill. App. 3d 652, 658 (1992).
¶ 103       Next, defendants contend the circuit court erred in admitting certain testimony of James
        Griffith, the special agent for the IHB police department, that was irrelevant and beyond his
        level of expertise. Specifically, defendants complain about Mr. Griffith’s testimony that
        during his Operation Lifesaver presentations, he determined that kindergartners or preschool
        age children might not appreciate the dangers of the railroad to the same degree as some high
        school or junior high school students. Any error here actually inured to defendants’ benefit,
        where Mr. Griffith’s testimony supported defendants’ argument that they owed no duty to


                                                 -25-
        plaintiff due to the ability of children in his age range (junior high school and high school
        age) to appreciate the risks of danger involved here. In the absence of any prejudice to
        defendants, the circuit court committed no reversible error in the admission of Mr. Griffith’s
        testimony.
¶ 104       Next, defendants make a brief reference that Dr. Lencki’s testimony regarding plaintiff’s
        low-average intelligence was inadmissible. Defendants provide no argument in support
        thereof and have waived review of the issue. Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006).
¶ 105       In their amicus curiae brief, the Illinois Civil Justice League, Washington Legal
        Foundation, and Allied Educational Foundation argue that the circuit court erred in admitting
        Dr. Lencki’s testimony for purposes of determining plaintiff’s “mentality to appreciate the
        danger” of jumping aboard the freight train. As discussed above, “when ascertaining a child’s
        appreciation of danger, our courts do not consider the subjective understandings and
        limitations of the child when a risk is deemed obvious to children generally. [Citations.] An
        undue burden would be placed on landowners in requiring them to focus on a minor’s
        subjective inability to appreciate a risk.” Salinas, 189 Ill. App. 3d at 61. “[A]lthough it is
        proper to consider the minor’s actual knowledge where the child has some greater
        understanding than a typical child of his age [citations], defendants are not expected to
        foresee the unique mental and physical limitations of a particular minor in terms of ability
        to appreciate the risk.” Colls, 212 Ill. App. 3d at 946.
¶ 106       Thus, the circuit court erred in admitting Dr. Lencki’s testimony for the purposes of
        showing plaintiff’s subjective inability to appreciate the danger in jumping aboard the 9- to
        10-mile-per-hour moving freight train. The error here was harmless, though, where Dr.
        Lencki testified that, the almost 13-year-old plaintiff (who had just finished sixth grade at the
        time he was injured), was not mentally challenged and that he was intelligent enough to meet
        his sixth grade requirements with the help of some supplemental educational services that
        already had been provided to him. Dr. Lencki’s testimony indicates that plaintiff did not have
        any significantly decreased intelligence hampering his ability to appreciate the danger.
        Accordingly, defendants suffered no prejudice by the admission of Dr. Lencki’s testimony.
¶ 107       Next, defendants contend the circuit court erred by allowing plaintiff to cross-examine
        defendants’ expert, Mr. Bradley, with a photograph for which he never established a
        foundation. The record indicates that, during direct examination, Mr. Bradley testified that
        Dr. Berg’s proposed improvements (chain-link fencing and an overpass at Austin Avenue)
        would not be effective because it was unlikely any chain-link fencing would remain intact
        given that holes routinely are cut in such fences. Mr. Bradley also testified during direct
        examination that a steel or concrete wall could keep trespassers off the right-of-way, but that
        the property owners would not approve because such a wall would be unsightly. During
        cross-examination, plaintiff exhibited a photograph of a concrete wall, which Mr. Bradley
        agreed might not be susceptible to being cut. Defendants now argue on appeal that plaintiff
        introduced no foundational evidence with respect to who constructed the concrete wall
        exhibited in the photograph, where the wall was located, or how much it cost. Defendants
        argue that the court should not have permitted plaintiff to cross-examine Mr. Bradley with
        this photograph in the absence of proper foundational evidence. Any error was harmless,
        though, where Mr. Bradley’s testimony on cross-examination regarding the photograph was

                                                  -26-
        consistent with his testimony on direct examination that such a concrete wall could keep
        trespassers off the right-of-way. Defendants suffered no prejudice from Mr. Bradley’s cross-
        examination on the photograph, and accordingly there was no reversible error.
¶ 108       Defendants argue that plaintiff improperly referenced the photograph during closing
        arguments. Defendants waived review by failing to object thereto. Dienstag v. Margolies,
        396 Ill. App. 3d 25, 41 (2009).
¶ 109       Next, defendants contend a new trial is warranted because the verdict was against the
        manifest weight of the evidence. A verdict is against the manifest weight of the evidence
        when the opposite conclusion is evident or when the jury findings are unreasonable, arbitrary,
        and not based on any of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992).
¶ 110       Defendants argue that the manifest weight of the evidence shows that plaintiff fully
        appreciated the danger of jumping aboard a moving freight train and that defendants could
        not have inexpensively prevented him from embracing that risk. As discussed extensively
        above, plaintiff testified at trial that at the time he attempted to jump aboard the freight train,
        he did not appreciate the danger. Dr. Berg testified in considerable detail as to how
        defendants could have eliminated the danger at relatively low cost compared to the risk to
        children. Said evidence supported the jury’s verdict, which was not against the manifest
        weight of the evidence.
¶ 111       Defendants make a cursory argument that the jury’s finding that plaintiff was only 40%
        at fault was against the manifest weight of the evidence. Defendants fail to convincingly
        show why the finding of 40% fault was unreasonable, arbitrary, and not based on any of the
        evidence, or why an opposite conclusion is evident. In the absence of such a showing, we
        must reject defendants’ argument that the jury’s comparative fault finding is against the
        manifest weight of the evidence.

¶ 112     V. Whether Public Policy Considerations Require Reversal of the Judgment
¶ 113     The amici, the American Tort Reform Association, the Association of American
      Railroads, the Illinois Civil Justice League, Washington Legal Foundation, and Allied
      Educational Foundation, argue that public policy considerations require reversal of the
      judgment below. Specifically, they argue: (1) the judgment improperly transforms
      landowners into insurers against all injuries suffered by trespassing children; (2) the
      judgment improperly rewards bad behavior by compensating a trespasser who was injured
      due to his own irresponsible behavior; (3) the judgment substantially erodes the open and
      obvious danger exception to landowner liability, and injects substantial confusion into the
      law governing child trespassers; (4) the judgment saddles railroads with an extreme financial
      burden by requiring them to fence all their miles of right-of-way and to otherwise erect
      barriers to prevent trespasser entry; and (5) such a financial burden also will force railroads
      to divert funds from railroad operations that have a high utility to the general public. The
      amici argue that an opinion affirming the judgment below will allow these negative
      consequences to take effect to the detriment of all landowners and railroads and, ultimately,
      to the general public who rely thereon.
¶ 114     As discussed above, we affirm the judgment. However, our opinion here will not have

                                                   -27-
        the far-reaching consequences attributed to it by the amici. Our holding does not transform
        landowners into insurers against all injuries suffered by trespassing children, but rather
        requires them to compensate only those children to whom they breached a duty of care owed
        under Kahn. Our holding does not improperly reward bad behavior by compensating a
        trespasser who was injured due to his own irresponsible behavior, but rather it affirms a jury
        verdict finding the railroads 60% liable to a trespassing child who foreseeably did not
        appreciate the dangers and full risk of harm from jumping aboard the slow-moving freight
        train and to whom a duty was owed under Kahn. Our holding does not substantially erode
        the open and obvious danger exception to landowner liability; rather, to the contrary, our
        holding affirms the continued viability of that exception and conforms with Engel in finding
        that the issue of whether the exception applied here was a question of fact and not a question
        of law. Our holding does not saddle railroads with an extreme financial burden by requiring
        them to fence all their miles of right-of-way and to otherwise erect barriers to prevent
        trespasser entry; rather, it affirms a jury verdict based in part on Dr. Berg’s testimony that
        defendants were required to take remedial measures only along the 6,000-foot corridor
        between Central Avenue and Ridgeland Avenue. The total cost of the remedial measures
        (i.e., chain-link fence plus overpass), as testified to by Dr. Berg, was approximately
        $175,000, which would not unduly hamper railroad operations having a high utility to the
        general public. We do not address whether defendants (or any other railroad) are required to
        fence their miles of right-of-ways or take other preventive measures against trespassers
        outside the 6,000-foot corridor between Central Avenue and Ridgeland Avenue.

¶ 115                                    VI. Conclusion
¶ 116     For all the foregoing reasons, we affirm the circuit court. As a result of our disposition
      of this case, we need not address plaintiff’s arguments regarding the applicability of the
      frequent trespass doctrine or scientific research in the area of adolescent brain development.
¶ 117     Affirmed.




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