An Illinois appellate court will soon have an opportunity to protect landowner rights in a pending premises liability case.  In Choate v. Indiana Harbor Belt Railroad Co., a trespassing twelve-year-old injured himself as he attempted to impress his girlfriend by jumping onto a moving freight train.  The court should reassert a basic premise of tort law: those who act foolishly should not be permitted to require others to pay the cost of their foolishness.

In Choate, the circuit court initially made the correct decision by dismissing the case in favor of the railroad company on summary judgment.  But the court later reversed itself and allowed the case to proceed to a jury, which found in the plaintiff’s favor.  While the ultimate award was reduced by 40% for the plaintiff’s comparative fault, the trespassing minor still received $3.9 million in damages.

On appeal, the court should focus on the primary issue in the case–whether a duty actually exists.  While landowners typically don’t owe a duty of care to trespassers on their land, Illinois law provides additional protections for trespassing children.  The landowner owes a duty of reasonable care to child trespassers when:

(1) the owner or occupier of the land knew or should have known that children habitually frequent the property;

(2) a defective structure or dangerous condition was present on the property;

(3) the defective structure or dangerous condition was likely to injure children because they are incapable, due to age and maturity, of appreciating the risk involved; and

(4) the expense and inconvenience of remedying the defective structure was slight when compared to the risk to children.

Illinois courts impose this duty on landowners to protect trespassing children from harms they are unable to appreciate.  Notably, however, this duty does not extend to open and obvious dangers that are apparent to children generally.  The Restatement cites, and Illinois has recognized, water, fire, and falling from a great height as examples of such open and obvious dangers.  The comments to the Restatement also state that the purpose of the duty is not “to protect children against harm resulting from their own immature recklessness in the case of known and appreciated danger.”  Accordingly, the landowner “is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved, but nonetheless chooses to encounter it out of recklessness or bravado.”

The appellate court should reaffirm landowner rights by reversing and dismissing this case.  The child-trespasser exception to the general no-duty-to-trespassers rule exists for the purpose of protecting children when they are incapable of appreciating the danger.  Here, the twelve-year-old made it clear in his deposition testimony that he was fully aware of the dangers of jumping aboard a moving freight train; in fact, the danger presented actually served as his motivation to make the jump.  In such a case, the court should rule as a matter of law that the landowner owed no duty to this trespassing minor who knowingly and recklessly faced an open and obvious danger in spite of his knowledge of the risk.  Washington Legal Foundation plans to file a brief in the Illinois appellate court to urge the court not to punish businesses for the foolhardy actions of trespassers.