The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is plaintiffs' motion for new trial, which the Court takes as a motion for reconsideration*fn1 (Doc. 48), to which defendant has filed a response (Doc. 51). Plaintiffs seek reconsideration pursuant to Fed. R. Civ. P. 59.
On April 26, 2005, plaintiff Justin Porter, age thirteen (13), trespassed upon land owned by defendant Union Electric Company d/b/a Ameren UE Corporation (Ameren) in Madison County, Illinois. Plaintiff Porter then climbed a metal tower carrying a power line owned by defendant, upon which he was electrocuted and fell approximately thirty-five (35) feet to the ground, sustaining burns, fractures, lacerations, and contusions. Plaintiff is represented by his mother and next friend, Anna Thebeau. Plaintiffs seek reconsideration pursuant to Fed. R. Civ. P. 59 of the Court's Order, dated September 30, 2008, which granted Ameren summary judgment based upon a finding that Ameren did not owe plaintiff Justin Porter a duty of care.
Under Rule 59(e), a litigant may move the Court to amend a judgment on three limited bases: (1) newly discovered evidence; (2) an intervening change in controlling law; or (3) manifest error of law or fact. Cosgrove v. Bartolotta, 150 F.3d 729, 73 (7 th Cir. 1998); Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7 th Cir. 1995); Fed. R. Civ. P. 59(e).
I. Child Trespasser Exception v. Frequent Trespasser
Exception*fn2 The basis of plaintiffs' claim against defendant is that, despite the general rule in Illinois that landowners owe no duty of care to trespassers,*fn3 plaintiff Justin Porter sustained an injury on defendant's land for which an exception to the "no duty" rule applies. In their motion now before the Court, plaintiffs seek reconsideration of the Court's ruling that the child trespasser exception*fn4 applies in this case. Plaintiffs contend that they alleged their claim under the frequent trespasser exception,*fn5 which is separate and distinct from the child trespasser exception.*fn6 Although defendant argues that the child trespasser exception and the frequent trespasser exception are not separate and distinct exceptions to the "no duty" rule, settled Illinois law belies that assertion.*fn7
But recognizing the existence of, and distinction between, these two exceptions does not end the Court's inquiry. The Court must also determine whether, as plaintiffs argue, the frequent trespasser exception applies in this case.*fn8 As the following discussion reveals, plaintiffs now seek an extension of the frequent trespasser exception which Illinois courts have never adopted.
The Supreme Court of Illinois has not applied the frequent trespasser exception in any case since 1921,*fn9 but the Illinois Court of Appeals has applied that exception more recently, most frequently in cases involving trespassers traversing a "beaten path" on or near a set of railroad tracks.*fn10 In at least one case, Miller v. Gen. Motors Corp., 565 N.E.2d 687 (Ill. App. 1990), the Illinois Court of Appeals refused to extend the frequent trespasser exception to cover a case involving a trespasser who was electrocuted by a power line. Id. at 694.
In Miller, a twenty-year-old boy attempted to gain access to a balcony area of a pumphouse by scaling a nine-foot wall and crawling through a twelve- by twenty-inch gap between the floor and the balcony. Id. at 689. After climbing onto the balcony, plaintiff grabbed a live electrical wire, and severely injured his hand. Id. Although the Illinois Court of Appeals explicitly considered the frequent trespasser exception in determining whether the defendant owed a duty of care to plaintiff, the court did not apply that rule. Id. at 691-95. Therefore, the Illinois Court of Appeals implicitly refused to extend application of the frequent trespasser exception to reach cases with facts similar to those now before the Court.
On the other hand, the Supreme Court of Illinois has never considered a case in which an overhead power line caused an electrocution to a child trespasser.*fn11 Therefore, the Supreme Court has never passed on the question of whether the child trespasser exception applies in such cases. But the Illinois Court of Appeals has applied the child trespasser exception on facts similar to those now before the Court.*fn12 Notably, the Court of Appeals also applied the open and obvious danger doctrine*fn13 to limit landowner liability in those cases,*fn14 a result plaintiffs attempt to avoid in this case through application of the frequent trespasser exception.
Even if the Illinois Supreme Court has not endorsed its lower courts' application of the child trespasser exception, this Court cannot ignore or reject the Illinois Court of Appeals' clear pronouncement that the child trespasser exception applies when a child is electrocuted by an overhead power line.*fn15 After ascertaining what the law in Illinois states with respect to this issue, the Court remains unpersuaded by other data that the Supreme Court of Illinois would depart from its lower courts' rulings.*fn16 Ultimately, plaintiffs' desire to apply the frequent trespass exception in this case is an attempted end-run around the immunity that landowners ...