Amicus brief to be filed in opposition to $6.5 million Cook County award; Teen argued risky jump was railroad's fault

Ann Knef Nov. 22, 2010, 12:29am




Attorneys with Sandberg Phoenix & von Gontard in St. Louis have been granted leave to file an amicus brief with the First District Appellate Court in opposition to a $6.5 million Cook County jury award.

Philip Lading, A. Courtney Cox (former U.S. Attorney for the Southern District of Illinois) and Tony Martin will file the brief on behalf of the Illinois Civil Justice League, the Washington Legal Foundation and the Allied Educational Foundation over a teenager's case against Burlington Northern Santa Fe Railroad and other defendants.

The case involves plaintiff Dominic Choate, who was injured in July 2003 when he attempted to jump onto a moving freight train in his hometown of Chicago Ridge.

Choate, who was almost 13 at the time of the accident, testified that despite his knowledge of the riskiness of his actions, he tried to jump onto a moving freight train to impress his girlfriend.

At trial, Choate did not allege that the train was operated negligently at the time of the accident; rather, his theory was that the defendants should have done more to prevent him from engaging in such risky behavior.

Other defendants include CSX Transportation, Inc., (the owner of the tracks), Indiana Harbor Belt Railroad Co. (which patrolled the railroad right-of-way), and the Baltimore and Ohio Chicago Terminal Railroad Co.

At trial, Choate conceded that he was trespassing on the railroad tracks at the time of his injury, and that in general landowners owe no duty of care to those who trespass on their property.

"Plaintiff nonetheless contended that Defendants were liable for his injuries because: (1) they were aware of a "dangerous condition" on the railroad property – moving freight trains that individuals would want to jump onto; and (2) children are likely to be injured while attempting to jump onto the trains because they are incapable, in light of their age and maturity, of appreciating the risk involved," according to a statement from Sandberg Phoenix & von Gontard.

Choate's attorneys argued that even though their client admitted he knew what he was doing was extremely dangerous, his admission was irrelevant, and that the jury should focus on the knowledge of the typical child of Choate's age, and not the actual knowledge of Choate himself.

The trial court, after initially granting summary judgment to defendants, reversed itself, holding that the obviousness of the dangerous condition should be left to the jury to decide. At trial, the jury found in favor of the Choate on liability.

The case was filed in 2003.

Choate is represented by Milo Lundblad, Marvin Brustin of Brustin & Lundblad in Chicago.

Defendant attorneys include David Schmidt, George H. Brant of Fedota Childers in Chicago.

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