The Chicago Personal Injury Law Blog

You'll Rip Your Foot Off! Kid Denied Recovery for Train Jumping

Dominic Choate was 12 years old when he made a really stupid decision. He wanted to impress his girlfriend. There was a moving train. Care to guess what happened next? On his third attempt to mount the moving behemoth, Choate slipped and his foot ended up under the wheel of the train, requiring a below-the-knee amputation.

Last year, a jury awarded him $3.6 million in damages. But last week, the Illinois Supreme Court overturned the verdict and awarded him nothing, finding that a "reasonably intelligent boy" of his age should have appreciated the obvious danger of train jumping.

Had Dominic Choate been an adult, there would have been no recovery whatsoever because he was trespassing on a railroad's right of way. In Illinois, landowners owe no duty to trespassers to provide for their safety, other than not intentionally harming them.

In addition, plaintiffs cannot recover for injuries sustained from their own obviously dangerous acts. For example, if this blogger were to stick his finger in an electrical socket, he couldn't sue over the lack of safety covers. A person can't benefit from his own stupidity when the danger is obvious.

The problem is, little Dominic was only 12. At this point in his life, he may have still believed in Santa Claus and had a Green Power Ranger poster on his wall. Illinois allows for an exception to the trespasser rule for child trespassers. Landowners have to make their property reasonably safe when they know that kiddies are going to trespass. The fences around these railroad tracks were either in disrepair or had sections missing, including near the parking lot from which Choate made his fateful leaps.

The question then becomes, what about the obvious danger rule? The trial court thought the jury should decide whether a 12-year-old should have appreciated the danger of train jumping. The appellate court agreed, stating that it was not a certainty that a 12-year-old should have known of the danger.

The Illinois Supreme Court, however, disagreed with both lower courts. They found that if a child is old enough to be let loose by his parents, he should be old enough to appreciate obvious dangers such as fire, drowning risks, or in this case, a moving train. The court cited a 1904 Illinois opinion, as well as multiple out-of-state opinions in classifying moving trains as an obvious danger that should be recognized by the "ordinary intelligent boy."

Sorry kid. Next time try a B.B. gun. We hear they're reasonably safe.

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