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ENGEL v. CHICAGO & NW. TRANSPORTATION CO.
186 Ill. App.3d 522 (1989)
Appellate Court of Illinois — First District (4th Division).
Opinion filed February 16, 1989.
IThe Park District strenuously challenges its liability to Engel and argues that, as a matter of law, it owed him no duty to protect him from the obvious danger of climbing on the moving train. That being the case, Engel failed to state a cause of action and the matter should not have gone to the jury. The Park District cites an impressive body of cases in which landowners were held to owe no duty to protect children from a variety of conditions on the basis of obvious danger. (E.g., Batzek v. Betz (1988), 165 Ill.App.3d 399, 519 N.E.2d 87 (no duty to protect 14-year-old from obvious risks of falling out of tree); Christon v. Kankakee Valley Boat Club (1987), 152 Ill.App.3d 202, 504 N.E.2d 263 (no duty to fence park to keep nine-year-old away from flooded dock area); Sampson v. Zimmerman (1986), 151 Ill.App.3d 396, 502 N.E.2d 846 (no duty to protect four-year-old from a burning candle because danger of fire is one that should be understood by a child old enough to be allowed at large).) The Park District argues that since the dangers of hopping freight trains is obvious, an objective determination, judgment should have been entered in its favor as a matter of law. Engel, on the other hand, distinguishes the instant case from those that may be categorized as representing universal life experiences that all children have at an early age. Hence, the policy determination that children are presumed to know the risks of falling from heights, drowning, or being burned is justified. (See Restatement (Second) of Torts § 339, comment j, at 203 (1966); Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 326, 383 N.E.2d 177.) In contrast, other risks of injury should not be presumed to be in the knowledge or life experience of all children and should be individually assessed as questions of fact. In the pending case, Engel could not be presumed to have realized the dangers of flipping the train because he had seen others, including employees of the railroad, successfully mount and dismount the slow-moving trains. Therefore, it was for the jury to determine whether his injuries were proximately caused by the Park District's breach of duty to him. • 1 The Park District relies on several Illinois Supreme Court decisions to bolster its argument that it had no duty to Engel. In Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, the court rejected the implication in the "attractive nuisance" doctrine that predicated liability on whether a dangerous condition had "lured" children onto the premises. Instead, the court found the cornerstone
of liability to be foreseeability of harm to children. In Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 326, 383 N.E.2d 177, 180, the court reiterated the Kahn reasoning and noted that "a duty which would not be imposed in ordinary negligence will be imposed upon the owner or occupier of land only if such person knows or should know that children frequent the premises and if the cause of the child's injury was a dangerous condition on the premises." (Emphasis in original.) A dangerous condition was defined as one likely to cause injury to children because of their inability to appreciate the attendant risks, due to age and immaturity. The existence of such dangerous condition, plus the defendant's knowledge of it, constitutes foreseeability. Corcoran, 73 Ill.2d at 326. • 2 In Cope v. Doe (1984), 102 Ill.2d 278, 464 N.E.2d 1023, the court explained that this rule does not impose a per se duty upon landowners to remedy all conditions on the land and "if the condition complained of presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that condition." (Emphasis in original.) (102 Ill.2d at 286, 464 N.E.2d at 1027.) The court went on to state the rationale for the rule, that since children are expected to avoid obvious dangers, there is no reasonably foreseeable risk of harm. Therefore, if a danger is "obvious" it is not considered "foreseeable." Cope v. Doe, 102 Ill.2d at 286, 464 N.E.2d at 1027. • 3 In the pending case there is no doubt from its admissions that the Park District knew that children frequented the area around the tracks and that the unfenced access from the park to the tracks presented a dangerous condition in the mind of safety engineers and inspectors for the district. The only remaining question on the issue of duty is whether the risks of flipping trains were "obvious" to the 12-year-old plaintiff, as a matter of law.
1. As the Park District points out, there is a distinction between punishment for wilful and wanton acts or omissions in relation to the tort itself and punishment for perjury during trial. The former is a proper base for imposition of punitive damages by a jury, while perjury may be separately punished by contempt or a criminal proceeding. (Amerco Field Office v. Onoforio (1974), 22 Ill.App.3d 989, 317 N.E.2d 596.) Since the punitive damages award has been vacated, however, we need not determine whether it would have been a proper award on any basis.
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