Appeal from the Circuit Court of Cook County. No. 03 L 12237William J. Haddad, Judge Presiding.
The opinion of the court was delivered by: Justice Rochford
JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hall and Justice Hoffman concur with the judgment and opinion.
Minor-plaintiff,*fn1 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 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.
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.
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.
On July 30, 2003, plaintiff and his friends Charlie Spindler, Steve Weyer, Alisa Van 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.
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.
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."
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
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.
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 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.
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.
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."
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.
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."
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.
Steve Trnka, a firefighter/paramedic employed by Chicago Ridge, testified he had lived 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.
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.
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.
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."
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.
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 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.
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.
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.
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.
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.
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 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
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.
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.
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.
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.
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.
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 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.
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 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.
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 andthat 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 ...