By Pat Murphy
The Daily Record Newswire
Boys do stupid things when trying to impress the girls.
But should a property owner be forced to fork over the cash when a boy's ill-conceived attempt at bravado ends in tragedy?
An Illinois court recently affirmed a $3.9 million verdict in favor of a boy who lost his foot in a failed attempt to jump a slow-moving freight train.
Somehow, that just doesn't seem right.
Dominic Choate was on top of the world in July 2003. The twelve-year-old Dominic had just finished sixth grade, in three months would enter the mystical teenage years and, best of all, was dating the apple of his eye, Alisa Van Witzenburg.
The middle of summer is prime time for kids to get into trouble, and that's exactly what Dominic, Alisa and four of their friends did.
On July 30, 2003, Dominic and Alisa met Charlie Spindler, Steve Weyer, Jessica Gunderson and Brittany Edgar at an apartment building in Chicago Ridge, Illinois.
Three railroad tracks run behind the apartment's parking lot. CSX owns the tracks. There is chain link fencing on both sides of the railroad right of way. On the parking lot side, the fence only goes part way, with a "NO TRESPASSING" sign posted where the fence ends.
On the other side of the tracks, a hole has been created in the fence big enough for people to walk through. It's a good bet that local residents created the hole in order to have a convenient short cut to get across the tracks.
You undoubtedly can find similar setups in countless trackside neighborhoods across the country. Railroads put up the fences. Locals and Mother Nature take them down.
On the fateful day in question, Dominic, Charlie and Steve decided to cross the tracks to visit Steve's house. At the time, a freight train traveling 9-10 mph was going through the rail yard.
As they waited for the train to pass, Dominic and Charlie came up with the bright idea of trying to jump the train. Dominic later admitted that he wanted to impress Alisa, who stood watching nearby.
Charlie tried first, failed, and stepped back from the train.
Now it was Dominic's turn.
He first tried to grab the bottom rung of a ladder on one of the cars while standing flat-footed, and had his fingers wrenched in the attempt.
Next, Dominic tried running alongside the slow-moving train before making a grab, but had to let go of the ladder when he felt his feet slipping.
On Dominic's third try, he managed to grab the ladder and hoist himself up part way, but slipped from the train. In the fall, his left leg went under the train and his left foot was severed.
Dominic survived, but he and his mother sued CSX and the Indiana Harbor Belt Railroad Company (IHB), which patrols the right of way in the area of the accident.
According to the lawsuit filed in Illinois state court, CSX and IHB were negligent in failing have the rail yard fully secured with fencing and in failing to construct a safe, convenient corridor for neighborhood residents to get across the tracks.
Now, surely a jury would not find fault with the railroads for injuries suffered by a trespassing youth who made an incredibly bad decision to try and jump a train, right?
Well, never underestimate the ability of jurors to be led astray (See Florida v. Anthony, California v. Simpson).
A jury awarded Dominic $6.5 million, apparently taking into account school records indicating that the boy had an average-to-low IQ of 83, evidence which the railroads strenuously objected to.
The trial judge did reduce the award to $3.9 million based on Dominic's comparative negligence, but the verdict sent alarm bells off in the defense bar and railroad industry.
The American Tort Reform Association, Association of American Railroads, Illinois Civil Justice League, Washington Legal Foundation, and Allied Educational Foundation each filed amicus briefs in favor of CSX and its co-defendants.
Naturally, the Illinois Trial Lawyers Association was pleased as punch with the verdict and answered with a brief in support of Dominic.
Last month, the Illinois Appellate Court upheld the award.
Flaunting common sense, the court rejected the railroads' argument that the act of jumping aboard a moving freight train presented an open and obvious danger for which CSX and its co-defendants owed Dominic no duty of care.
The court reasoned that the jury's verdict could stand regardless of whether an objective or subjective test applied in determining whether a danger is obvious to a trespassing child.
With regard to the objective test, the court concluded that "[t]he 'obviousness' of the danger of jumping aboard a slow-moving, 9 to 10 mile per hour freight train that the not-yet 13-year-old plaintiff could outrun and which had caused neither him nor his friend harm in their previous attempts to board, and the ladder of which was within reach of the plaintiff while standing flat-footed, is not such that no minds could reasonably differ."
As to the subjective standard, the court cited evidence in the record indicating that Dominic did not appreciate the risk.
"Specifically, plaintiff testified, contrary to his mother's testimony, that she never told him he could be killed or lose an arm or a leg as a result of a train accident. Plaintiff denied receiving any graphic warnings from his mother regarding how badly he might be hurt in a train accident. ...
"Finally, although plaintiff's two previous attempts to jump aboard the train had been unsuccessful, he was not injured on either of these attempts. Plaintiff testified to his belief at the time he was injured that he would be able to jump on and off the train with no problems," the court said. (Choate v. Indiana Harbor Belt Railroad Company)
Sorry, but none of these conclusions reached by the court pass the "straight face" test.
Any 12-year-old kid who stands near a railroad crossing as a train goes by cannot avoid being impressed with the danger of those grinding steel wheels as they roll along those steel rails.
Simply put, no 12-year-old kid needs to be told that life and limb is at stake when he attempts to take on a moving freight train.
Published: Tue, Jul 26, 2011