Justice FREEMAN delivered the judgment of the court, with opinion.
¶ 1 Plaintiff, Dominic Choate, brought a personal injury action in the circuit court of Cook County against defendants, Indiana Harbor Belt Railroad Company (IHB), the Baltimore and Ohio Chicago Terminal Railroad Company (B & OCT), and CSX Transportation, Inc. (CSX). A jury returned a verdict in favor of plaintiff. The appellate court affirmed. 2011 IL App (1st) 100209, 352 Ill.Dec. 677, 954 N.E.2d 760. We allowed defendants' petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). We now reverse the judgments of the appellate and circuit courts.
¶ 4 In July 2003, plaintiff was 12 years and 9 months old, and had finished the sixth grade. Plaintiff lived in Chicago Ridge. CSX, which wholly owns B & OCT, owns three railroad tracks that run northwest to southeast through Chicago Ridge. IHB manages the tracks and patrols the railroad right-of-way.
¶ 5 Plaintiff testified that on July 30, 2003, he and two friends, Steven Weyer and Charles Spindler, met up with three girls, Alisa Van Witzenburg, Brittany Edgar, and Jessica Gunderson in the parking lot of an apartment building in Chicago Ridge. These children were all between 12 and 13 years old.
¶ 6 Defendants' railroad tracks lie adjacent to the north side of the parking lot. There was no railroad crossing at that location. The nearest crossings were at Ridgeland Avenue, approximately three-quarters of a mile northwest, and Central Avenue, approximately one-quarter of a mile southeast. Only segments of this mile-long corridor were fenced. On the north side of the tracks at the parking lot, a chain link fence was torn open and rolled back to enable people to walk through it to cross the tracks. On the south side of the tracks, a chain link fence ended east of the parking lot. A sign posted on the west end of this fence read as follows:
According to his testimony, plaintiff did not see this sign on July 30, 2009.
¶ 7 Plaintiff further testified that while the group was gathered in the parking lot, a freight train approached on the middle track. The train was moving eastbound, from their left to their right, steadily at approximately 10 miles per hour and never stopped. According to plaintiff, the group
¶ 8 Plaintiff testified that Spindler attempted to jump onto the train first. Spindler tried to grab a ladder on the side of a moving boxcar, but he was unsuccessful and stepped away from the train. Plaintiff then attempted to jump onto the train three times. On his first attempt, plaintiff stood flat-footed on the ground and grabbed a ladder. At the time, he was only approximately 4 feet 10 inches tall. He was able to grab the bottom rung of the ladder with his right hand. However, the ladder bent his fingers backwards and he pulled his hand back. On his second attempt, plaintiff ran alongside the train and grabbed a ladder. However, his shoes began to slip on the rocky roadbed, forcing him to let go. On his third attempt, plaintiff grabbed hold of a ladder with both hands and pulled his body up toward the train. He managed to put his right foot on the ladder. Plaintiff testified that he does not recall what happened next while he was on the train.
¶ 9 Edgar and Gunderson each testified that the girls were screaming at plaintiff to stop what he was doing and get away from the train. Gunderson and Van Witzenburg each testified that plaintiff slipped from the ladder and fell down. Van Witzenburg further saw his left foot fall under a train wheel.
¶ 10 Plaintiff remembered waking up on the ground and trying unsuccessfully to stand. Plaintiff's left foot had been severed above the toes.
¶ 11 Austin Patton testified that he saw the children in the parking lot, shortly before the accident. Patton testified that he watched as the boys approached the moving train. One of the boys tried to grab a ladder on the side of a boxcar, but he was knocked down and made no further attempt to jump on the train. The other boy, whom Patton identified as plaintiff, continued trying to jump on the train. Patton saw plaintiff's one hand lose its grip on the ladder, such that the moving train "swung him [plaintiff] around so his back was to the train. He went down and his — his foot went up over that rail."
¶ 12 Patton was approximately 50 feet from plaintiff and Spindler when they began their attempts to jump on the train. Patton yelled at the boys to stay away from the tracks, but the train was so loud they could not hear him.
¶ 13 Dr. Andrea Kramer, plaintiff's orthopedic surgeon, testified that plaintiff's injury necessitated an amputation below the knee, rather than closer to the ankle, because "there was no skin left on his heel or his foot, so it was the best option."
¶ 15 On March 16, 2005, plaintiff filed the instant second amended complaint. Plaintiff alleged, inter alia, that defendants failed to: adequately fence the area; prevent minor children from accessing trains or the railroad tracks; post warning signs, or otherwise warn of the danger of trains; and monitor the area in the vicinity of the train and railroad tracks to prevent children from gaining access thereto.
¶ 16 Defendants moved for summary judgment, contending they did not owe plaintiff a legal duty because: (1) jumping onto a moving freight train is an obvious danger to children of plaintiff's age; and (2) based on his discovery deposition, plaintiff subjectively appreciated the danger. The circuit court initially granted defendants' motion, but on reconsideration, vacated the summary judgment. The court found that whether the danger of jumping onto a moving freight train is so obvious as to preclude any duty owed by defendants to plaintiff is a question of fact for the jury.
¶ 17 The trial adduced the above-recited evidence. The jury returned a verdict in favor of plaintiff. The jury assessed plaintiff's damages in the amount of $6.5 million, but reduced that amount to $3.9 million after finding that plaintiff was 40% comparatively negligent. The circuit court subsequently entered judgment on the verdict in the amount of $3,875,000.
¶ 18 Defendants timely filed a posttrial motion pursuant to section 2-1202(b) of the Code of Civil Procedure (735 ILCS 5/2-1202(b) (West 2002)). Defendants requested a judgment non obstante veredicto (n.o.v.), asserting that: (1) they did not owe plaintiff a duty to protect against the possibility that he might injure himself by confronting an obvious danger, and (2) plaintiff's alleged remedy for eliminating the dangerous condition was not reasonable. Alternatively, defendants requested a new trial. The circuit court denied defendants' posttrial motion. The appellate court affirmed the judgment of the circuit court. 2011 IL App (1st) 100209, 352 Ill.Dec. 677, 954 N.E.2d 760.
¶ 19 Defendants appeal to this court. We granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. We also granted the Association of American Railroads, the Chicago Transit Authority, and the Northeast Illinois Regional Commuter Railroad Corporation (Metra) leave to submit an amici curiae brief in support of defendants. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).
¶ 21 Defendants contend that they are entitled to a judgment n.o.v., which is properly granted only where all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967). An adverse ruling on a motion for a judgment n.o.v. is reviewed de novo. Evans v. Shannon, 201 Ill.2d 424, 427, 267 Ill.Dec. 533, 776 N.E.2d 1184 (2002). In other words, the reviewing court applies the same Pedrick standard as did the circuit court. Harris v. Thompson, 2012 IL 112525, ¶ 15, 364 Ill.Dec. 436, 441-42, 976 N.E.2d 999, 1004-05.
¶ 22 Defendants contend that they are entitled to a judgment n.o.v. because they had no duty to protect against the possibility that plaintiff might injure himself confronting an obvious danger. To succeed in an action for negligence, the plaintiff must establish that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach proximately caused injury to the plaintiff. Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 227, 216 Ill.Dec. 703, 665 N.E.2d 1260 (1996). A legal duty refers to a relationship between the defendant and the plaintiff such that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff. Iseberg v. Gross, 227 Ill.2d 78, 87, 316 Ill.Dec. 211, 879 N.E.2d 278 (2007); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). Absent a duty, "no recovery by the plaintiff is possible as a matter of law." Vesey v. Chicago Housing Authority, 145 Ill.2d 404, 411, 164 Ill.Dec. 622, 583 N.E.2d 538 (1991); accord Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 116, 214 Ill.Dec. 156, 660 N.E.2d 863 (1995) (same). The existence of a duty under a particular set of circumstances is a question of law for the court to decide. Bucheleres v. Chicago Park District, 171 Ill.2d 435, 445, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996); Vesey, 145 Ill.2d at 411, 164 Ill.Dec. 622, 583 N.E.2d 538. Where a plaintiff has obtained recovery against a defendant based on negligence, and if the defendant did not owe the plaintiff a duty, then a judgment n.o.v. in favor of the defendant is required. Washington v. City of Chicago, 188 Ill.2d 235, 238-39, 242 Ill.Dec. 75, 720 N.E.2d 1030 (1999); see Fris v. Personal Products Co., 255 Ill.App.3d 916, 923, 194 Ill.Dec. 623, 627 N.E.2d 1265 (1994).
¶ 24 Pursuant to the theory of premises liability, an owner or occupier of land (hereafter landowner) owes a duty of reasonable care under the circumstances to all entrants upon the premises except to trespassers. Rhodes, 172 Ill.2d at 227-28, 216 Ill.Dec. 703, 665 N.E.2d 1260. In the case at bar, the parties agree that plaintiff, Spindler, and Weyer became trespassers when they stepped onto the railroad right-of-way. See 625 ILCS 5/18c-7503(1)(a)(i) (West 2002) (Illinois Vehicle Code providing that 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").
¶ 25 At common law, the general rule is that a landowner is under no duty to maintain the premises for the safety of trespassers, whether they are adults or children. Kahn v. James Burton Co., 5 Ill.2d 614, 625, 126 N.E.2d 836 (1955); Darsch v. Brown, 332 Ill. 592, 595-96, 164
¶ 27 Courts have recognized a number of exceptions to the rule of no duty of reasonable care to trespassers. Rhodes, 172 Ill.2d at 229, 216 Ill.Dec. 703, 665 N.E.2d 1260. One such exception pertains to children. Pursuant to Kahn and its progeny, the law imposes a duty upon a landowner to exercise reasonable care to remedy a dangerous condition on the premises, or to otherwise protect children from injury resulting from the dangerous condition, where: (1) the landowner 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, based on age and maturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition was slight when compared to the risk to children. Mt. Zion State Bank, 169 Ill.2d at 116-17, 214 Ill.Dec. 156, 660 N.E.2d 863; Kahn, 5 Ill.2d at 625, 126 N.E.2d 836.
¶ 28 Kahn established the foreseeability of harm to children as the cornerstone of liability. Corcoran v. Village of Libertyville, 73 Ill.2d 316, 325-26, 22 Ill.Dec. 701, 383 N.E.2d 177 (1978); Kahn, 5 Ill.2d at 625, 126 N.E.2d 836. Where the above elements are satisfied, harm to children is deemed sufficiently foreseeable for the law to impose a duty of reasonable care upon the landowner. Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177. Also, Kahn "brought Illinois law into harmony with section 339 of the Restatement (Second) of Torts." Id. (citing Restatement (Second) of Torts § 339 (1965)). In the case at bar, defendants contend that the third and fourth elements have not been satisfied as a matter of law, thereby precluding imposition of a duty of reasonable care owed to plaintiff.
¶ 30 At several junctures in the case at bar, including defendants' posttrial motion, defendants contended that whether the danger of the moving train was obvious to plaintiff was a matter of law for the circuit court to decide. However, the court rejected this contention whenever it was raised. For example, rejecting defendants' motion for a directed verdict at the close of plaintiff's case in chief, the court stated: "The jury is going to make that determination." In affirming the judgment
¶ 31 We disagree. This court has repeatedly explained that a landowner has a duty to remedy a dangerous condition on the premises where the condition is likely to cause injury to the general class of children who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. Cope v. Doe, 102 Ill.2d 278, 286, 80 Ill.Dec. 40, 464 N.E.2d 1023 (1984); Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177. However, it is equally settled that a landowner has no duty to remedy a dangerous condition if it presents obvious risks that children generally of the plaintiff's age would be expected to appreciate and avoid. This court has reasoned: "since children are expected to avoid dangers which are obvious, 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, 80 Ill.Dec. 40, 464 N.E.2d 1023; accord Logan v. Old Enterprise Farms, Ltd., 139 Ill.2d 229, 236-37, 151 Ill.Dec. 323, 564 N.E.2d 778 (1990); Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177. While certainly there are latent dangers that children would not appreciate due to their minority, a landowner "is free to rely upon the assumption that any child old enough to be allowed at large by his parents will appreciate certain obvious dangers or at least make his own intelligent and responsible choice concerning them." Mt. Zion State Bank, 169 Ill.2d at 117, 214 Ill.Dec. 156, 660 N.E.2d 863.
¶ 32 "In Illinois, obvious dangers include fire, drowning in water, or falling from a height." (Emphasis added.) Mt. Zion State Bank, 169 Ill.2d at 118, 214 Ill.Dec. 156, 660 N.E.2d 863 (collecting authorities). We observe that this is not an exclusive list. Rather, there are "many dangers * * * which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large." (Emphasis added.) Restatement (Second) of Torts § 339 cmt. j (1965). Our appellate court long ago held that it was not the duty of a railroad to keep watch and warn boys not to jump onto its cars because jumping from the ground upon a moving freight train is dangerous, and all men and all ordinarily intelligent boys know it to be so. Fitzgerald v. Chicago, Burlington & Quincy R.R. Co., 114 Ill.App. 118 (1904) (12-year-old plaintiff); LeBeau v. Pittsburgh, C., C. & St. L. Ry. Co., 69 Ill.App. 557 (1897) (10-year-old plaintiff).
¶ 33 In the case at bar, the appellate court acknowledged the above-cited persuasive authority, but was not guided by it because the court considered La Salle National Bank v. City of Chicago, 132 Ill.App.3d 607, 88 Ill.Dec. 102, 478 N.E.2d 417 (1985), and Engel v. Chicago & North Western Transportation Co., 186 Ill.App.3d 522, 134 Ill.Dec. 383, 542 N.E.2d 729 (1989), to be dispositive. 2011 IL App (1st) 100209, ¶¶ 51, 60. In each case, the appellate court affirmed a jury verdict in favor of a minor plaintiff despite the defendant's contention that hopping a moving train was dangerous as a matter of law. In Engel, the court reasoned: "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." Engel, 186 Ill.App.3d at 531, 134 Ill.Dec. 383, 542 N.E.2d 729. In La Salle, the court simply reasoned that "the jury made no specific finding that plaintiff `appreciated the risk' in jumping on a moving freight train." La Salle, 132 Ill.App.3d at 615, 88 Ill.Dec. 102, 478 N.E.2d 417.
¶ 34 We note that the reasoning expressed in La Salle and Engel is inconsistent with the principles enunciated by this court in both Cope and Corcoran. In any negligence action, the court must first determine as a matter of law whether the defendant owed a duty to the plaintiff. See Iseberg, 227 Ill.2d at 87, 316 Ill.Dec. 211, 879 N.E.2d 278; Anderson v. Woodlawn Shell, Inc., 132 Ill.App.3d 580, 582, 87 Ill.Dec. 871, 478 N.E.2d 10 (1985). Further, the requirement of an open and obvious danger is not merely a matter of the plaintiff's contributory negligence, or the parties' comparative fault, but rather a lack of the defendant's duty owed to the child. Bucheleres v. Chicago Park District, 171 Ill.2d 435, 447, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996); Mt. Zion State Bank, 169 Ill.2d at 117-18, 214 Ill.Dec. 156, 660 N.E.2d 863. The existence of a duty necessarily subsumes the question of whether the danger of a particular condition should be obvious to children of the plaintiff's age. Where there is no dispute about the physical nature of the condition, whether a danger is open and obvious is a question of law. See Wilfong v. L.J. Dodd Construction, 401 Ill.App.3d 1044, 1052-53, 341 Ill.Dec. 301, 930 N.E.2d 511 (2010); Belluomini v. Stratford Green Condominium Ass'n, 346 Ill.App.3d 687, 691-93, 282 Ill.Dec. 82, 805 N.E.2d 701 (2004). In Mt. Zion State Bank, which involved the subsumed issue of obviousness, this court made it clear that the existence of a duty is a question of law, which must be resolved by the court. Mt. Zion State Bank, 169 Ill.2d at 116, 214 Ill.Dec. 156, 660 N.E.2d 863. In the case at bar, the circuit court should have considered in the first instance the obviousness of the danger of moving trains as it relates to the foreseeable risk of harm to plaintiff.
¶ 35 Corcoran and Cope were controlling authority when the appellate court decided La Salle and Engel. If a ditch, as in Corcoran, 73 Ill.2d at 328, 22 Ill.Dec. 701, 383 N.E.2d 177, and a partially frozen retention pond, as in Cope, 102 Ill.2d at 289, 80 Ill.Dec. 40, 464 N.E.2d 1023, presented obvious dangers that children generally would be expected to recognize, then surely "`the noise and appearance of a huge, rumbling, string of railroad cars'" is such an obvious danger. See McKinney, 510 N.E.2d at 389-90; Holland, 431 A.2d
¶ 36 We observe that during his case in chief, plaintiff testified as follows:
On redirect, plaintiff was asked: "And as you stood there, did you have any thought that you might lose your leg as a result of grabbing on that ladder?" Plaintiff answered: "Not a thought whatsoever."
¶ 37 Based on this and other testimony, the appellate court reasoned that the record contained conflicting evidence as to whether plaintiff appreciated the full risk of harm at the time he was injured, thereby precluding a judgment n.o.v. in favor of defendants. 2011 IL App (1st) 100209, ¶¶ 65-66, 352 Ill.Dec. 677, 954 N.E.2d 760.
¶ 38 We disagree. This court has explained as follows:
Further, knowledge of the obvious danger, or appreciation of the risk, does not require the clairvoyance to foresee the precise injury which in fact occurred. See Shull v. Harristown Township, 223 Ill.App.3d 819, 826-27, 166 Ill.Dec. 142, 585 N.E.2d 1164 (1992); Alston v. Baltimore & Ohio R.R. Co., 433 F.Supp. 553, 569 n. 102 (D.D.C.1977).
¶ 39 It has never been part of our law that a landowner may be liable to a trespasser who proceeds to wantonly expose himself to unmistakable danger in total disregard of a fully understood risk, simply for the thrill of the venture. Alston, 433 F.Supp. at 570. We conclude that the third element of the child trespasser exception to the no-duty rule has not been satisfied.
¶ 41 We complete our analysis of defendants' duty to plaintiff by considering whether the expense and inconvenience of remedying the dangerous condition is slight when compared to the risk to children. Mt. Zion State Bank, 169 Ill.2d at 116-17, 214 Ill.Dec. 156, 660 N.E.2d 863;
¶ 42 We disagree. Again, the existence of a duty "is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. It is no part of the province of a jury * * *." Prosser and Keeton on Torts § 37, at 236 (W. Page Keeton et al. eds., 5th ed. 1984). This issue is an element of the analysis recognized by Kahn and its progeny, in accord with section 339 of the Restatement (Second) of Torts. If the test is satisfied, a duty of reasonable care to a trespassing child is imposed on a landowner. Absent this, the landowner owes no such duty. Again, this duty determination is a question of law for the court and not for a jury. Mt. Zion State Bank, 169 Ill.2d at 116, 214 Ill.Dec. 156, 660 N.E.2d 863.
¶ 43 Courts have generally answered in the negative the question whether the expense and inconvenience of remedying this dangerous condition is slight when compared to the risk to children. "A railroad company does not have a duty to fence its property to prevent trespassing children from boarding its moving trains." Frazee v. St. Louis-San Francisco Ry. Co., 219 Kan. 661, 549 P.2d 561, 565 (1976); accord Holland, 431 A.2d at 603 n. 11 (collecting cases); Alston, 433 F.Supp. at 559 n. 28 (collecting cases); Wade R. Habeeb, Annotation, Railroad's Liability for Injury to or Death of Child on Moving Train Other Than As Paying or Proper Passenger, 35 A.L.R.3d 9, § 4(a) (1971). Courts have essentially explained that if a duty were imposed on a railroad to erect a fence where one accident occurred, the railroad "would likewise be subject to the duty of fencing the innumerable places along its many miles of tracks frequented by trespassing children." Dugan v. Pennsylvania R.R. Co., 387 Pa. 25, 127 A.2d 343, 348 (1956). We hold that Illinois law does not impose any such requirement. See Illinois State Trust Co. v. Terminal R.R. Ass'n. of St. Louis, 440 F.2d 497, 501 (7th Cir.1971) (applying Illinois law).
¶ 44 We reach this conclusion even considering plaintiff's own testimony. Plaintiff and his friends paid no attention to the existing fence segments; they paid no attention to the posted warning sign; they were not even trying to get to the other side of the tracks. Rather, plaintiff admitted that he was trying to impress his friends. No fence would have prevented such bravado. See, e.g., Nolley v. Chicago, Milwaukee, St. Paul & Pacific R.R., 183 F.2d 566, 569 (8th Cir.1950).
¶ 45 In sum, because plaintiff was a trespasser, defendants owed him no duty of reasonable care, except to refrain from willfully and wantonly injuring him, which plaintiff does not allege. Because plaintiff was a child, Kahn and its progeny provide an exception to the "no duty" rule, and would impose on defendants a duty of reasonable care toward plaintiff, if its required elements were satisfied. This determination
¶ 46 Because defendants did not owe plaintiff a legal duty, we hold that they were entitled to a judgment n.o.v. See Washington, 188 Ill.2d at 238-39, 242 Ill.Dec. 75, 720 N.E.2d 1030. Therefore, the judgments of the appellate and circuit courts are reversed without remand. See Harris, 2012 IL 112525, ¶ 26, 364 Ill.Dec. 436, 445, 976 N.E.2d 999, 1008. Accordingly, we need not address defendants' alternative contention that they are entitled to a new trial.
¶ 48 For the foregoing reasons, the judgments of the appellate court and the circuit court of Cook County are reversed.
¶ 49 Judgments reversed.
Justices THOMAS, GARMAN, KARMEIER, BURKE, and THEIS concurred in the judgment and opinion.
Chief Justice KILBRIDE dissented upon denial of rehearing, with opinion.
¶ 50 CHIEF JUSTICE KILBRIDE, dissenting:
¶ 51 Although I initially joined in the opinion in this case, I believe that plaintiff presents arguments in his petition for rehearing that warrant this court's consideration. In particular, I agree with plaintiff's contention that the opinion contravenes the public policy established by this court in Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955).
¶ 52 In Kahn, this court recognized the general rule that a landowner has no duty to keep the property safe for trespassers of any age. Nonetheless, we recognized in Kahn an exception to this rule that applied to trespassers who are children when the property contained a dangerous structure or condition. Specifically, this court held that the law imposes a duty on a landowner "to exercise due care to remedy the [dangerous] condition or otherwise protect the children from injury resulting from it." Kahn, 5 Ill.2d at 625, 126 N.E.2d 836.
¶ 53 The child trespasser exception recognized by this court in Kahn is applicable when: (1) a landowner knows, or should know, that children habitually frequent the property; (2) a defective structure or dangerous condition exists on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable of appreciating the risk involved based on their age and immaturity; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight compared to the risk to children. Ultimately, this court explained that the rationale underlying the child trespasser exception, and therefore justifying the imposition of liability on the landowner for a child trespasser's injuries, is "the foreseeability of harm to the child." Kahn, 5 Ill.2d at 625, 126 N.E.2d 836.
¶ 54 In a later decision, we reiterated that Kahn "established the foreseeability of harm to children as the cornerstone of liability." Corcoran v. Village of Libertyville, 73 Ill.2d 316, 325-26, 22 Ill.Dec. 701, 383 N.E.2d 177 (1978). Subsequently, the
¶ 55 In this case, it is undisputed that plaintiff was a child trespasser and that defendant's property contained a dangerous condition, namely, a moving train. Thus, a straightforward application of Kahn means that defendant had a duty to "to exercise due care to remedy the condition or otherwise protect [plaintiff] from injury resulting from it." Kahn, 5 Ill.2d at 625, 126 N.E.2d 836.
¶ 56 The court's decision here, however, reaches the opposite conclusion. It concludes, inter alia, that defendant owed plaintiff no duty, and holds, for the first time by this court, that a moving train is a per se obvious danger that poses a risk that any child allowed at large should appreciate. Supra ¶¶ 35-36.
¶ 57 In my opinion, as plaintiff argues in his petition for rehearing, this court's holding is clearly erroneous under the undisputed facts of this case and contradicts our core holding in Kahn — the basis for imposing liability under the child trespasser exception is "the foreseeability of harm to the child." Kahn, 5 Ill.2d at 625, 126 N.E.2d 836; Corcoran, 73 Ill.2d at 325-26, 22 Ill.Dec. 701, 383 N.E.2d 177. Here, the uncontested facts establish that defendant railroad company knew that children, including the plaintiff, were regularly and repeatedly trespassing on its property. These trespassing children attempted to board moving trains and climb over, or through, trains. In other words, not only was it foreseeable to defendant that children were trespassing and engaging in dangerous conduct that could harm them, but defendant had actual knowledge of the situation. Indeed, defendant voluntarily took steps to prevent children from trespassing, albeit unsuccessfully.
¶ 58 Although Illinois law exempts landowners from protecting child trespassers from obvious risks and dangers on the property, until this decision, this court recognized only three per se examples of an obvious danger — fire, drowning in water, and falling from a height. Supra ¶ 32 (citing Mt. Zion State Bank, 169 Ill.2d at 118, 214 Ill.Dec. 156, 660 N.E.2d 863). After considering the facts of this case, I no longer believe that this court should add a moving train to that list.
¶ 59 I emphasize that defendant here had actual knowledge that children were trespassing on its property and interacting with moving trains. On these facts, how can this court possibly conclude that defendant could not foresee harm to children? If Kahn's recognition of the child trespasser exception is truly based on "foreseeability of harm" to children, this court must reconsider its decision here.
¶ 60 There are countless miles of railroad tracks in Illinois, including commuter lines in our densely populated urban and suburban areas. Our decision here effectively absolves landowners of any liability when trespassing children are injured by a moving train on their property, even when the landowner has actual knowledge of the situation. In other words, landowners are now free to ignore completely trespassing children who may be subjecting themselves to serious physical harm through foolish interactions with a moving train.
¶ 61 The opinion claims that "we now explicitly recognize as a matter of law that a moving train is an obvious danger that
¶ 62 Furthermore, what does the phrase "any child allowed at large" mean? Does it only apply to minors under 18? What about individuals, children or adults, with limited mental capacity or mental health issues? Does our holding mean that children who are allowed to roam outside by negligent parents no longer have any protection under the law for open and obvious dangers?
¶ 63 Finally, what is to limit an extension of this decision to other moving objects that pose obvious dangers, such as moving trucks, buses, or other vehicles? All of these unanswered questions reveal that the issue in this case is more complicated that I initially thought and should not be subject to a bright-line rule. In addition, by ignoring undisputed evidence that the property owner had actual knowledge that children were trespassing and subjecting themselves to harm from a moving train, this court's decision here contradicts the foundation of our holding in Kahn that focused on "foreseeability of harm to children."
¶ 64 Ultimately, these concerns suggest to me that, as the lower courts similarly concluded, the question of whether a moving train is an open and obvious danger, thereby precluding a finding of a legal duty, presents too many potential complicated factual scenarios for this court to decide as a matter of law. Indeed, this court has recognized that "[t]he existence of an open and obvious danger is not a per se bar to finding that a defendant who owns, occupies or controls land has a duty to exercise reasonable care." Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 425, 235 Ill.Dec. 905, 706 N.E.2d 460 (1998). I believe when, as occurred here, a landowner has actual knowledge that children are trespassing and subjecting themselves to injury from a moving train, the law should impose a duty on that landowner to exercise reasonable care. Accordingly, I would allow plaintiff's petition for rehearing to reconsider our holding here.