Colls v. City of Chicago (212 Ill. App. 3d 904, 1991)

JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, Nohemi Colls, as administrator of the estate of Daniel Colls, her minor son, brought a wrongful death action against defendants, the Chicago and North Western Transportation Company (C & NW) and the City of Chicago (the city), alleging that defendants’ negligence caused her son to be struck and fatally injured by a commuter train, and requesting damages. (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq.) Following a jury trial in the circuit court of Cook County, a general verdict was returned in favor of both defendants, and judgment was entered thereon. Plaintiff appeals from the judgment and from the denial of her post-trial motion to set aside the verdict and for a new trial.

On appeal, plaintiff contends that several trial court errors, either individually or by their cumulative effect, denied her a fair trial on the merits. She raises the following issues for our review: (1) whether the trial court erred in modifying the pattern jury instruction on the plaintiff’s burden of proof (Illinois Pattern Jury Instructions, Civil, No. 120.04 (2d ed. 1971)), so that the instruction contained an additional element of proof and misstated the applicable law; (2) whether the trial court abused its discretion by failing to order a mistrial or further limit the testimony of a defense witness following the late disclosure of relevant documents which had been requested during discovery; (3) whether the trial court committed reversible error by striking certain allegations of plaintiff’s complaint regarding issues on which the jury had heard evidence, and by subsequently refusing to instruct the jury on the issues raised by those allegations; and (4) whether the trial court committed reversible error in permitting defense counsel and defense witnesses to repeatedly characterize plaintiff’s decedent as a “trespasser,” where such status was irrelevant to the question of defendants’ liability under the legal theory of the case.

The following facts relating to this tragic occurrence are undisputed. On August 19, 1978, at approximately 11:30 a.m., 12-year-old Daniel Colls was struck and killed instantly by a commuter train operated by C & NW (hereafter referred to as the railroad) on its northwest line from the suburbs into its Chicago terminal. Daniel and an eight-year-old friend, John Spaw, had been walking along tracks owned and maintained by the railroad at a location about V-k blocks from the Colls family residence. The boys were searching for discarded railroad spikes for use in the construction of a tree house which neighborhood children were building on a strip of city property adjacent to the railroad right-of-way. The property in question is located along the southwest side of North Irene Avenue in Chicago. It runs on a diagonal, for about 250 feet, between North Kedzie and West Belmont Avenues. The railroad tracks at this location also run in a southeasterly and northwesterly direction, parallel to. Irene Avenue, on an embankment rising from the city-owned land. The tracks cross over Kedzie and Belmont Avenues by means of steel-girded bridges, or viaducts. At the time that he was struck by an in-bound train, plaintiff’s decedent was on the Kedzie Avenue bridge. The parties agree that the railroad was operating its train properly; no issues relating to train operation or maintenance were raised at trial.

On January 24, 1979, plaintiff filed her complaint, charging the railroad and the city with conduct proximately causing Daniel’s death, under a negligence theory based on Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836. The complaint alleged that the railroad permitted a dangerous condition to exist on its premises which involved an unreasonable risk to children, including the decedent. It further alleged that the railroad and the city knew, or should have known, that children had frequently played at the tracks and on the adjacent embankment and city property, for some time prior to August 19, 1978, and that the children, due to their immaturity, were not able to appreciate the dangers and hazards of the tracks. The complaint stated that well-worn paths extended up the embankment, on the property of both defendants, and that numerous railroad spikes and a tree house were located in the same area. The complaint specifically charged the railroad, inter alia, with negligence in failing to: (1) barricade or fence off its elevated tracks; (2) maintain warning signs on and around these tracks; (3) warn children of the dangers and hazards of playing at the tracks, although they knew that children, including plaintiff’s decedent, would not appreciate the danger involved in these activities; (4) maintain guards or other suitable personnel to prevent children from playing on the tracks; and (5) maintain the tracks so as to keep them free from objects which would attract children. The allegations of negligent conduct by the city included, inter alia, failure to: (1) barricade or fence off its property; (2) maintain warning signs in and around the property and railroad tracks; and (3) keep its property free from objects which would attract children to the tracks.

On April 8, 1980, plaintiff filed interrogatories to the railroad which, in part, requested as follows:

“Prior to August 19, 1978, did any agents, employees or representatives of [the railroad] have knowledge of persons crossing, standing on or near, or walking along [the] tracks at and adjacent to [the] Irene Street track segment? If so, please state the following:

(a) The name and last known residence and business address of any and all persons having such knowledge.

(b) The date or dates on which such knowledge was learned or observations of person crossing [the] tracks was made.

(c) For approximately how long prior to August 19, 1978, had such agent, employee or representative had such knowledge.

* * *

Prior to August 19, 1978, had [the railroad] received any reports or complaints of children or other persons being upon the right of way and/or tracks at the place of the occurrence alleged in Plaintiff’s Complaint? If so, state the following:

(a) The date or dates on which each such report was received.

(b) The name and last known residence and business address of the person making each such report, and *** receiving each such report.

(c) The nature of the complaint or report on each such occasion.

(d) Identify by date, title, author, and name and address of the present custodian any and all documents pertaining to each such report, including but not limited to complaint reports, investigation forms, police reports, and incident reports.”

Plaintiff also filed, on April 8, 1980, a “Notice to Produce [Documents],” including:

“One copy of any and all [railroad] police reports, investigation reports, spot reports, incident reports, complaints, or other documents showing instances when members of the public (particularly including children) were upon or crossing the railroad right of way at the place of and prior to the occurrence ***.”

On April 18, 1980, the railroad answered the interrogatory relating to agents’ knowledge of persons walking on or near the tracks “at and adjacent to” the Irene track segment by stating that there was “[n]o record of same.” It answered the interrogatory requesting reports or complaints of persons on the right-of-way and tracks by stating, “See defendant’s production response.” Apparently, that answer referenced the railroad’s “Response to Plaintiff’s Notice to Produce,” also filed on April 18, 1980, wherein the railroad answered the above-quoted request for police reports and similar documents by stating as follows:

“Defendant has one police report of a trespasser related to 8/3-8/4, 1978 where an adult trespasser was warned and released in the vicinity of Belmont Avenue.” (Emphasis added.)

The police report so described was provided to plaintiff, and was later introduced at trial during her case in chief. It contains the designation, “Criminal Trespass to Land,” and memorializes a complaint, received by “D. Hahne” on August 3,1978, in the following words:

“Juveniles on North West Line at Belmont daily between 0800 & 0830. Commuter trains Nos. 630 and 632 reporting incidents.”

The report further describes the “status of [the] investigation” into the complaint as follows:

“Reporting officer surveilled the subject location on 8/4/78, and one adult was observed running along (south) the right of way. Subject advised that he was enroute to work and was taking a short-cut. Subject warned and released with no further incident. Further contacts with trespassers will be reported on separate incidents.”

The name and address of the adult trespasser, which also appear in the body of the report, bear no apparent relation to the parties or issues in this case. No other incident reports, or documents of a similar nature, were disclosed or provided to plaintiff during the course of discovery.

Trial commenced on March 22, 1988, following lengthy pretrial proceedings unrelated to this appeal. During his opening statement, counsel for C & NW referred to the railroad’s problem with “trespassing,” or “people c[oming] on [its] property without authorization.” Plaintiff’s objection to the use of the term “trespass” was overruled. After the opening statements, plaintiff moved for a mistrial on grounds that defendant’s characterization of Daniel Colls and his playmates as trespassers had tainted the jury’s perception of decedent and was out of place in a trial where plaintiff’s status had no bearing on defendants’ liability. The trial judge, stating that the jury would be clearly instructed on the burden of proof, and that he did not consider use of the term problematic, denied plaintiff’s motion.

Several witnesses testified regarding the physical characteristics of the property in question. Among them was Geoffrey Burke, supervisor of surveyors in the C & NW suburban division at the time of the trial. Burke testified that he surveyed the area at the request of his superiors on September 1, 1978. At that time, he located a tree, with a wooden platform on it, at a distance of 61 feet from the middle of the center railroad track, toward Irene Avenue. Because the railroad’s property extends 50 feet from the center track, he determined that the tree house was 11 feet outside railroad property.

Burke explained that many years prior to these events, a commuter passenger station had occupied the relevant property, and that a retaining wall, spanning the area between Belmont and Kedzie, had been constructed, probably to serve as the support for the passenger platform. He recalled that when he visited the area in September 1978, portions of this retaining wall, which was about two feet high, were “gone.” He further estimated that, between the base of the tree containing the tree house and the top of the retaining wall, the ground rose about eight feet over a distance of 35 feet. He stated that he observed no fencing in the area.

Peter Studl testified that in 1978, he was retained by the Colls family as their attorney, in order to initiate this litigation. He further stated that he served in that capacity until 1980, when he asked the law firm of plaintiff’s trial attorney to take over the case. Studl described his observations on September 21 and September 24, 1978, when he visited the stretch of railroad track where Daniel was killed, and the adjacent property, and took a number of photographs. He testified that on these occasions, he observed footpaths, worn into the grass, extending across the property from Irene Avenue “up to the railroad tracks.” He also noticed a tree house in the group of trees located on the easterly part of the property. He described the tree house as about 10 to 15 feet off the ground, constructed from wooden planks. More wood, some buckets, and a mattress were placed at the bottom of the tree, and a thick rope and a chain hung from a tree limb. Studl further observed railroad spikes which had been driven into the side of the tree, going up to the tree house. Walking onto the tracks, he saw many of the same kind of spikes, lying “around the rail bed and the viaduct along the rail[s].”

Studl further testified that he observed a “deteriorating” and “crumbling” retaining wall at a point “up toward the tracks between the tracks and Irene [Avenue].” He stated that one of the footpaths led from the tree house, up the embankment, and onto the tracks where the retaining wall had crumbled, leaving a gap of about 20 yards. Studl also described a second path, which led from the “grassy area” onto the tracks, a third which went through a clearing in the brush, and a fourth that led up the side of the tracks, nearer Kedzie Avenue. He recalled walking most of the paths at the scene, and stated that he had no difficulty walking right up onto the tracks. He contrasted the gentle sloping near the center of the Irene Avenue property, where the wall had deteriorated, with the steeper climb necessary to scale the edges of the wall by the street corners at Belmont and Kedzie. Studl also testified that he saw no warning signs on either the embankment or the tracks.

On cross-examination, Studl further described the property as containing “lots of trees” and foliage. He estimated that the tree house which he saw was approximately 15 to 20 feet from the curb line of Irene Avenue, in a clump of trees between the street and the tracks. Studl also described how he sat along the tracks while several trains passed by. He stated that there was “a roar from the [Kennedy] expressway” and that he did not hear the trains coming until they were very close. It seemed that the trains would be off in the distance and then, suddenly, “there w[ould be] a very large noise and the train w[ould be] there,” an experience which struck him as “frightening.”

Richard Bivins testified that in August 1978, he lived on Irene Avenue, directly across the street from the property in question. He described the area at that time as containing a lot of brush and many trees, with a tree house visible from the street. Bivins further stated that many children would play there every afternoon after school, beginning in May or June, and during the summer. He did not recall seeing any maintenance done on the property or any signs posted there. Bivins also stated that several times prior to the Colls accident, he had complained to both the railroad and the Chicago police department, and had been told that cutting down the trees or putting up fences was not feasible. He recalled that the police would drive by, but that children would return to the area as soon as the police left. Bivins further testified that he had complained to the Chicago police about 10 times in the two years prior to the accident. These complaints related to children playing on the Irene Avenue property, or throwing rocks, or teenagers coming on the property at night to set fires and drink under cover of the trees.

Susan Bivins corroborated her husband’s testimony as to the lack of maintenance on the Irene Avenue property. She stated that both of them would sometimes pick up the wood that children had brought there and dispose of it. She further testified that she once telephoned the railroad to report that children were playing there and were building tree houses.

Wilma Miller, Richard Bivins’ sister who lived at the same Irene Avenue address, testified that in 1978, children were playing hide-and-go-seek on the property across the street “every day.” She related that she sometimes complained to police officers in passing squad cars, attempting to have them “run kids off the tracks and away from that area,” but that the police responded that there was nothing that they could do.

Ernest Wicker testified that he lived on Irene Avenue, across the street from the property in question, from 1972 to 1981. Wicker stated that he had seen children as young as four years old go onto the tracks, which were easily accessible because the land sloped down, like a “walkway right up onto the tracks,” where the railroad wall had collapsed. He further testified that only once in nine years had he observed someone who appeared to be a railroad employee surveilling the area.

Wicker also testified as to complaints he made to both the city and the railroad about maintenance problems on the Irene Avenue property. He stated that the city and the railroad kept referring him to each other, and that he never got a satisfactory response. The railroad, in particular, told him that the property was owned by the city, not the railroad.

Judith Wicker, Ernest’s wife, testified that prior to 1978, she telephoned the railroad at least monthly with complaints about the property between the Irene Avenue and the railroad tracks. The railroad responded that it was city property, and the city claimed that the problem was the railroad’s responsibility. Mrs. Wicker further testified that she observed children as young as three years old playing in the area, and on the tracks, led by their seven-year-old siblings. She stated that she telephoned the railroad at least six times each year regarding the children. When on one occasion she requested the railroad to fence the area, she was told that a fence was not feasible because, if the railroad fenced that section of track, it would have to fence the entire city. She also testified that her son attended Daniel Colls’ school and was his friend. She recalled that Daniel had some talent for drawing.

On cross-examination, Judith Wicker stated that, although she frequently warned children to stay off the property and off the railroad tracks, and that most of the younger ones would then leave, they often returned as soon as she went home. On redirect examination, she could not recall whether Daniel Colls had been present on any occasion when she warned the children.

Jose Colls, Daniel’s father, testified that his family, including his wife, Daniel, and Daniel’s seven-year-old sister, had moved into the neighborhood about 11 months before the accident. He stated that, prior to that time, the family had never resided close to any railroad tracks. Mr. Colls further testified that Daniel had completed the fifth grade in June 1978. He also stated that Daniel had never told him that he played on railroad tracks and had never given him the impression that he was familiar with trains. On the morning in question, he had granted his son permission to go out and play with some other boys for a short time, after he had already spoken with his mother about his plans.

The plaintiff, Nohemi Colls, described her. neighborhood in 1978 as a quiet residential area. She stated that she did not know that there were any railroad tracks nearby. She further related that during the year prior to Daniel’s death, he had repeated the fifth grade, and that his playmates during that year were younger than he was. She testified that her son had no discipline problems at school, and that he followed her instructions. Mrs. Colls corroborated her husband’s testimony as to Daniel’s interest in drawing. Her testimony concerning the events of the morning was substantially the same as her husband’s. She specifically remembered Daniel’s asking her permission to go with the boys “to Albany [Street] to help finish building a tree house.”

John Miller testified that, in August 1978, he was seven years old and a friend of Daniel Colls. He stated that he and Daniel had played on the property across the street from his home “all that summer.” He explained that the children would just climb up to the tracks at the place where the wall was decaying. He generally described his own activities in the area as playing, running around, throwing rocks, and collecting spikes from the ground for use in building tree houses.

On cross-examination, Miller testified that when he arrived at the tree house on the morning of the accident, Daniel and some other children were already in the tree house. Later, when Daniel and another boy decided to go farther toward the tracks, he did not follow them. He stated that he had seen Daniel up on the tracks “almost every day” prior to the morning in question, but had never been on the tracks with him when a train passed by. Miller estimated that about 15 to 20 minutes passed between the last time that he saw Daniel and the time that the accident occurred.

Nineteen-year-old Michael Walsh testified that he had resided in the immediate neighborhood of the Irene Avenue track segment for his entire life. He recalled playing on the property in question for about five or six years, between the ages of 7 and 13, often going up on the railroad tracks. He testified that he and other children used the paths as short cuts along the tracks to reach stores and other interesting places in the neighborhood.

Walsh related that about two weeks before the accident, he, Daniel, John Spaw, James Quinn, and another boy had started to build a “clubhouse” in a 15-foot tree along the slope of the tracks. He explained that it was easy to find spikes for the tree house by walking along the tracks, where railroad repairmen had left them. Walsh further stated that during the month that he knew Daniel Colls, they had walked together on the tracks about four times. Although trains had passed them- on these occasions, they did not pass “close enough to endanger [their] lives.” Walsh further recalled that, on the day of the accident, he had run out of spikes while working on the tree house. Daniel and John Spaw volunteered to get some, while he and James Quinn remained at the tree. He estimated that four or five minutes passed before he learned of the accident. On cross-examination, Walsh stated that, from the tree house, one could feel a passing train pull the breeze, the branches, and everything else up with it.

James Quinn testified that during the time that Daniel Colls and John Spaw were on the tracks looking for spikes, he was climbing up to the tree house and back down again, trying to determine the best placement for the spikes. He stated that he had his back turned away from the tracks during this 10- to 15-minute period.

John Robert Spaw testified that, on August 19, 1978, he was eight years old and a friend of Daniel Colls. On the day of the accident, he called for Daniel at his home about 11 a.m. Spaw stated that he and Daniel walked directly to a tree house on the Irene Avenue property. He testified that five boys, including Spaw, Daniel, Michael Walsh, and James Quinn, had been constructing the tree house together. After playing at the tree for a while, he and Daniel went to look for railroad spikes needed for climbing the tree. Spaw further testified that he had no difficulty getting up to the tracks by climbing “onto a cement wall which was about up to [his] neck.” He did not remember where Daniel got access to the tracks, but stated that it was not at the same location. He also stated that there were no fences or other barriers impeding access to the tracks.

Spaw further testified that, once on the tracks, the two boys proceeded toward the Kedzie Avenue bridge, looking downward as they searched for spikes. Daniel, who was walking slightly ahead of Spaw, on the same track, continued all the way across the bridge, to a position near a train switch. Spaw stated that he followed Daniel only three-fourths of the way across the overpass, bending down as he walked along the girder because he was afraid that his mother might see him from “down the street.” At that point, he stopped and remained where he was. Spaw further testified that, when he and Daniel were so positioned, the sound of a horn first brought the train to his attention. He recalled that he immediately looked up and saw the train, about two city blocks away, coming toward him. He shouted, “the train,” and then turned around and ran southeast down the bridge. Spaw further testified that both he and Daniel looked up when they heard the horn, and that neither of them had seen the train before that time. Spaw stated that Daniel “jumped straight” where he stood, looking at the train. After Spaw had reached the end of the bridge, and had jumped off the side of the girder and away from the track, he caught another glimpse of Daniel. He stated that Daniel was then about six feet behind him, near the end of the bridge. When the train passed, all that Spaw could see was “the green and yellow [train] and sparks from the wheels,” and leaves flying around in the wind.

On cross-examination, Spaw stated that he and Daniel had been searching for spikes for about 10 minutes when the train came. He acknowledged that, while on the bridge, he had seen a light “off in the distance.” Spaw further stated that he could not remember why he stopped at a position about three-fourths of the way across the bridge. He explained that at one point, Daniel walked off the bridge on its western end, next to the switch. Sometime between the moment when he saw the light in the distance and the time that he observed Daniel standing off the track, pulling at the switch, Daniel asked Spaw what he (Spaw) would do if a train came. Spaw answered, while laughing a little, that “[he]’d run.” A few seconds later, the train arrived, blowing its horn four times. Spaw was asked whether he was aware, prior to this time, that the switch in question controlled the access of freight trains into the railroad yard (the Avon-dale Yard) by the Plywood Minnesota store on the other side of Kedzie Avenue. Spaw stated that he was. He also agreed that, behind the switch, the ground slopes gradually down into the lumberyard. Spaw further testified that there were areas along both Kedzie and Belmont Avenues from which a person could reach the same segment of track, without entering from Irene Avenue. On redirect examination, Spaw stated that he knew, on the day of the accident, that it was impossible for a person such as himself or Daniel to throw the switch at the end of the Kedzie Avenue bridge, because the switch was locked.

Donald Meisner, an assistant bridge engineer for the railroad, was the first defense witness. He testified that the Kedzie Avenue bridge was 105 feet long and 14.6 feet high, as measured from the base of the rail to the surface of Kedzie Avenue below. He also explained that the steel girders on the bridge are necessary both to support the rails and to prevent anything from falling into the street. On cross-examination, Meisner stated that a commuter train car, traveling along the tracks on the bridge, would be flanked on each side by a girder, permitting only 5V2 inches of clearance between the train and the girder to its left or right. On redirect examination, Meisner agreed with the statement that, for all practical purposes, this type of bridge forms “chutes,” through which only a railroad train can fit, and that the bridges are designed for no other purpose. On re-cross-examination, he stated that the railroad’s bridge record did not indicate that there were warning signs, or any other signs, on the bridge.

Dale Hahne, inspector of police for the Chicago and North Western Transportation Company, testified next. At the time of trial, Hahne was in charge of the railroad’s police operations in Illinois. He first explained the railroad’s statutory authority to maintain its own police department in order to supplement the police forces of the various municipalities for the purpose of protecting the railroad’s property, employees, passengers and cargo. (Ill. Rev. Stat. 1977, ch. 114, par. 98.) Hahne was then questioned about the railroad’s police patrols along its commuter line from Chicago to the city’s northwest suburbs, particularly the area around Kedzie and Belmont Avenues and the Avondale Yard. The following colloquy occurred:

“Q. [Railroad’s attorney]: What experience in the summer of 1978 did the police force have with trespassers on the commuter lines?

A. We have trespassing situations on all of our commuter lines: adult and juvenile alike. People walk down the tracks, or sometimes juveniles play on the tracks or something like that.

I am not sure if that particular year was any more of a problem than the following or preceding year, but it has always been a consistent concern, yes.”

Asked how the railroad’s police force attempted to respond to this situation, Hahne explained that, in the Chicago metropolitan area, railroad police officers physically patrolled the railroad’s rights-of-way in marked squad cars. He further stated that no consistent pattern or schedule was adhered to because a consistent pattern of police presence would defeat the purpose of the patrols. He testified that railroad police officers became aware of trespassers in a variety of ways: direct observation while on patrol; radio messages from train crews who passed by an area, telephone calls from citizens who observed trespassers on railroad property, and calls from local police who needed to share information or inquire whether the railroad wished to sign a complaint against an individual.

Hahne identified plaintiff’s exhibit 21, dated August 3, 1978, as a standard railroad police complaint report. He stated that the report, concerning juveniles on the tracks at Belmont Avenue, was transmitted from a train crew member to a commuter control manager, who informed the railroad police department. A police officer, sent to survey the area where the juveniles had been observed, encountered' only an adult trespasser, who was warned and released. Hahne further identified his signature on the report, explaining that he had personally received the telephone call from the commuter control manager, had assigned an officer to investigate, and had received that officer’s report of the action taken.

The witness was then asked to describe the “appropriate response” of a railroad police officer who encountered “a child trespasser, a youngster up there [on the tracks],” during the summer of 1978. Hahne testified that his officers confronted any person found on railroad property, but particularly juveniles. They warned juveniles “of the dangers of such actions,” and either escorted or directed them off the property. The officer would then prepare an incident report, recording the name, address, and age of the individuals encountered, and the parents’ names of a juvenile. The incident report would further serve as a “warning card,” which could be consulted in the event of another incident involving the same individual, when the officers might need to determine “whether or not *** to pursue it further criminally.”

Hahne further explained that railroad police officers would sometimes take a juvenile home to his parents and advise the parents of the incident. Another option was to send a follow-up letter to the parents at the address given by the juvenile. The letter would “ask the parents’ cooperation in monitoring the activities of the children,” and would mention that additional incidents might result in “arrest and prosecution for trespassing.” Hahne also stated that drawing a gun or discharging one into the air would be an inappropriate response in dealing with a child trespasser and would not be authorized under railroad policy.

During a sidebar, plaintiff’s counsel stated that he was prepared to object if the railroad attempted to introduce any incident reports relating to the Avondale Yard area, which was not the location at which plaintiff’s decedent was struck by the train or at which he gained access to the tracks. Plaintiff’s counsel further stated that there was no indication that appropriately patrolling the Avondale Yard area would equate with patrolling the Irene Avenue area. Counsel for the railroad advised him that he was planning to produce complaint forms “with respect to that entire strip of property, none of which *** wfould] mention Daniel Colls or any other kids testified to in th[e] case.” Plaintiff’s counsel immediately moved to exclude all such incident reports from evidence, stating that they had been requested early in the discovery process, but had never been produced. The trial judge, expressing concern with the hearsay nature of such documents as well as with the apparent discovery violation, instructed the C & NW attorney to confine Hahne’s testimony to the location and general description of incidents documented in his files. He further ruled that the reports themselves would not be admitted into evidence.

Upon returning to the witness stand, Hahne testified that he had searched the railroad’s records relating to alleged incidents of trespassing in 1978, prior to August 19, in the vicinity of the Kedzie Avenue bridge, and had brought these records to court, as well as the records from 1977, 1976, and 1975. Hahne handed the 1978 stack of reports, marked as “C & NW Group Exhibit No.5,” to the railroad’s attorney, who then presented them to plaintiff’s counsel. Plaintiff’s counsel voiced his objection, noting that all of the documents in the 1978 stack related to incidents within six months prior to the Colls accident. He stated that plaintiff’s case was clearly prejudiced by his having received only one of these reports (plaintiff’s exhibit No. 21) during discovery, but none of the others, where plaintiff’s complaint alleged the railroad’s failure to guard and supervise the area in question. He further stated that had he known of all this evidence tending to show railroad police diligence, he might have employed a different trial strategy. The court declared that there appeared to be an inadequate response to discovery which unfairly prejudiced the plaintiff.

Counsel for C & NW contended that he had been operating under a belief that plaintiff’s former attorney had agreed to limit the original document request to a time frame of six months prior to the accident, and that the reports from previous years should therefore be allowed into evidence. However, plaintiff’s attorney stated that he knew nothing of such an agreement and that nothing in his files reflected one. Nor could the railroad’s counsel locate any evidence in his files to support his contention. Accordingly, the trial judge ruled that none of the additional incident reports would be admitted into evidence. He further ruled that Hahne would not be permitted to testify with respect to those reports, or to be questioned with the stack of reports in front of him. Nor could the railroad use the reports at trial for any purpose. However, Hahne would be allowed to testify as to those incidents which he personally recalled from his many years of railroad police work, including those which he may have recalled after reviewing the excluded documents at some point in the past. Plaintiff’s counsel stated his belief that the nondisclosure of these “critical” documents constituted grounds for a mistrial, and so moved. Plaintiff’s motion was denied.

On further direct examination, Hahne testified that C & NW property was prioritized as to police coverage, with those areas reporting more incidents of criminal activity receiving more attention by patrols. He stated that the area around Kedzie, Belmont, and the Avondale Yard, the C & NW freight yard adjacent to the Plywood Minnesota building, was referred to as a “hot spot,” in comparison to other areas, because criminal damage to property and theft from freight cars occurred there, in addition to “simple trespass.” For these reasons, the area was relatively frequently patrolled. Hahne described the surveillance positions of railroad officers who, in 1978, patrolled the freight yard around the Plywood Minnesota building, “almost on a daily basis in the summertime.” From these vantage points, if the officers observed an “adult slinking along” the railroad right-of-way, he would be watched to see if he intended to break into the cars, which often contained large quantities of beer. As for juveniles, police on patrol would “assume [that] they were just trespassers,” and would approach and warn them in the routine manner. Hahne also testified that most of the right-of-way in the area was visible and easily accessible to railroad police vehicles traveling on the Kennedy Expressway.

On cross-examination, Hahne estimated that there were approximately 85 C & NW police officers stationed in the Chicago metropolitan area in 1978. Hahne further testified that freight trains would travel through the area either on a daily basis, or several times a day. Commuter trains, which followed a regular schedule, came through hourly in nonrush hours, and more frequently during rush hours. While he described most of the passenger train right-of-way as “approximately 70 mile an hour track,” he testified that the freight trains generally traveled more slowly than the commuter trains, and that a freight train might be slowing down even more as it approached this area, in order to exit at the Avondale Yard. Commuter trains, on the other hand, would have no reason to stop or slow down, as there were no commuter stops nearby. Hahne explained that when a train first became visible to someone at this location, the train’s headlight would be the first thing to catch the person’s attention. At the point where only the headlight was visible, a person could not distinguish an oncoming freight train from an oncoming commuter train. In response to a question from plaintiff’s counsel, Hahne agreed that if the officer who investigated the complaints of “juveniles daily” on the tracks had responded to similar reports on other occasions, he would have filled out a complaint form for each incident. On cross-examination by the city’s attorney, Hahne further testified that individuals had unrestricted access to the railroad tracks from the Plywood Minnesota parking lot.

At the close of all the evidence, the defendants’ motions for a directed verdict were denied. The railroad also moved to strike certain allegations of the plaintiff’s complaint, including those which charged the railroad with negligent conduct in (1) failing to properly maintain the area around the Irene Avenue railroad tracks; (2) failing to maintain guards or other suitable personnel to prevent children from playing on the tracks; and (3) failing to maintain the tracks so as to keep them free of objects attractive to children. Counsel for the railroad argued that these allegations were either vague or duplicative, or were not supported by the applicable law and the evidence in the case. The railroad’s motion to strike did not include plaintiff’s allegations relating to fencing or the posting of warning signs. Plaintiff’s counsel responded, with respect to the allegation of improper maintenance, that the evidence showed that C & NW permitted the retaining wall, which would have provided some sort of barrier to the tracks, to deteriorate. He also objected to the striking of the other above-mentioned allegations, on the ground that they represented remedial steps that could have been taken at slight expense and inconvenience to the railroad, as compared with the risk to the children. Having heard the parties’ arguments, the court granted the railroad’s motion to strike.

The city then moved to strike every allegation of negligent conduct against it, with the exception of “failure to barricade or fence off” the property. The city maintained that it had no legal duty to perform any of the other acts which it was charged with neglecting. Plaintiff’s counsel objected to the striking of those allegations concerning the city’s failure to maintain its property. He also argued that, if the city was found to have a duty to fence, it would also have a duty to warn. The trial judge, stating that relevant case law dealt only with a city’s duty to fence, sustained the city’s motion to strike as presented.

During the jury instructions conference, court and counsel addressed the issue of what the appropriate burden of proof instruction should be, under the facts of the case. Plaintiff and defendant railroad both tendered instructions which were modified versions of Illinois Pattern Jury Instructions, Civil, No. 120.04 (2d ed. 1971) (hereinafter IPI Civil 2d No. 120.04), the official version of which was drafted pursuant to Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, as a statement of the plaintiff’s burden of proof in a negligence case involving a child injured by a dangerous condition on defendant’s land. The trial judge decided to use neither of the instructions submitted by counsel. He also determined not to use IPI Civil 2d No. 120.04 in its official, unmodified form, because that instruction includes a paragraph which effectively makes plaintiff’s contributory negligence a complete bar to recovery. Instead, the trial judge drafted a court’s instruction, more fully discussed below, which he believed modified IPI Civil 2d No. 120.04 so that it more accurately stated Illinois law following the supreme court’s adoption of comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. Among the other instructions given to the jury were the following: IPI Civil 2d No. A10.03 (Supp. 1986) (explaining contributory negligence as plaintiff’s failure to use ordinary care, resulting in a reduction of damages); IPI Civil 2d No. A10.04 (Supp. 1986) (stating the defendant’s duty to use ordinary care); IPI Civil 2d No. 10.05 (defining a minor’s standard of “ordinary care”); and IPI Civil 2d No. 15.01 (explaining “proximate cause”). Over the railroad’s objection, the trial judge refused to instruct on the definition of “trespasser” (IPI Civil 2d No. 120.01), a term appearing in no other instruction that the jury received.

Court and counsel also gave considerable attention to framing an appropriate issues instruction for the jury. The trial judge refused the instruction submitted by plaintiff, which listed certain allegedly negligent acts, such as improper maintenance of the defendants’ property and the city’s failure to post warning signs, which had been stricken from her complaint. The issues instruction which the jury received, over plaintiff’s objection, stated in pertinent part:

“The plaintiff claims that her decedent was fatally injured *** due to one or more of the following instances of wrongful conduct:

1. Defendant [Railroad], in failing to barricade or fence off its elevated railroad tracks.

2. Defendant [Railroad], in failing to maintain warning signs on and around said railroad tracks.

3. Defendant, City of Chicago, in failing to failing to barricade or fence off its property.

The plaintiff further claims that one or more of the foregoing was a proximate cause of decedent’s injuries.”

Following closing arguments, the jury retired to consider the evidence in light of all the instructions. From their verdict in favor of both defendants, plaintiff now appeals.

Opinion

Plaintiff first contends that the trial court erred in modifying the burden of proof instruction governing the case (IPI Civil 2d No. 120.04), so that the instruction contained an additional element of proof not included in the pattern instruction. She maintains that the use of the court’s burden of proof instruction, in combination with the comparative negligence instructions, resulted in a misstatement of the law which needlessly confused the jury and prejudiced her case. In order to adequately address plaintiff’s argument, it is necessary to discuss the relevant provisions of the disputed instructions in relation to the doctrine adopted by our supreme court in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836 (hereinafter, the Kahn doctrine), and in the context of the applicable standard of review.

The Kahn case involved an 11-year-old child injured while playing on a stack of lumber which collapsed. The child was a trespasser on land occupied by a building contractor, where a supplier had piled the lumber without adequate support. The plaintiff’s complaint alleged that the lumber and other building equipment were visible to children passing by the property, and that these conditions tended to attract and allure children to the premises. It further alleged that no reasonable precautions had been taken to prevent children from entering the property or to warn them against the dangerously stacked lumber piles. The supreme court held that plaintiff’s recovery against both the supplier and the building contractor should stand, despite the general rule that an owner or one in possession or control of premises is under no duty of ordinary care to keep his property in any particular condition for the safety of trespassers or other uninvited entrants. (Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836, 841-42.) However, in analysing the defendants’ duty to the trespassing child, the court rejected the use of the “attractive nuisance” label to define an exception to general rule. .Rather than recognize the presence of an “attractive” or alluring condition on a defendant’s land as providing the basis for the defendant’s duty to certain trespassing children (the “attractive nuisance doctrine”), the court noted that the exception was actually grounded in “the customary rules of ordinary negligence cases.” (Kahn, 5 Ill. 2d at 624, 126 N.E.2d at 841.) The court went on to define the basic elements of the exception as follows:

“It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the ejqpense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill. 368.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeabliity of harm to the child.” Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.

The Kahn decision, while discarding the older “attractive nuisance” concept as the basis of landowner liability, adopted the view of the Restatement of Torts section 339 (1934). That formulation, with minor revisions, is set out in Restatement (Second) of Torts section 339 (1965), where the following elements of landowner liability for “Artificial Conditions Highly Dangerous to Trespassing Children” are delineated:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” (Emphasis added.) Restatement (Second) of Torts §339, at 197 (1965).

As indicated by the comment accompanying IPI Civil 2d No. 120.04, that instruction was intended to incorporate the same elements set forth in Kahn and in section 339 of the Restatement Second of Torts. IPI Civil 2d No. 120.04 reads as follows:

“Attractive Nuisance — Injury to Children Plaintiff has the burden of proving each of the following propositions:

First: That a condition existed on the [defendant’s] premises which the defendant knew, or, in the exercise of ordinary care should have known, involved a reasonably foreseeable risk of harm to children.

Second: That the defendant foresaw, or in the exercise of ordinary care should have foreseen, that children would be likely to go upon [his] [the] premises.

Third: That the plaintiff was in the exercise of that degree of care which a reasonably careful [minor] [child] of the age, mental capacity and experience of the plaintiff would use under circumstances such as those shown by the evidence.

Fourth: That the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.

Fifth: That the condition was a proximate cause of the injury or damage to the plaintiff.

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.” (Emphasis added.) (Illinois Pattern Jury Instructions, Civil, No. 120.04 (2d ed. 1971).)

The comment further notes, consistent with Kahn, that “[t]he words ‘Attractive Nuisance’ were included in the title *** as a useful catch phrase and not to indicate that the instrumentality which causes the injury need have attracted the children onto the premises.” IPI Civil 2d No. 120.04, Comment, at 354-55.

In attempting to provide the jury, in March 1988, with an accurate instruction on the plaintiff’s burden of proof under the Kahn doctrine, court and counsel realized that IPI Civil 2d No. 120.04, as set out above, contained a third proposition which effectively required plaintiff to prove the minor’s complete freedom from contributory negligence as an essential element of her case. In 1971, when the second edition of the pattern instructions was published, this requirement accurately reflected the law in Illinois, where a plaintiff’s own contributory negligence still operated as complete bar to recovery. Ten years later, however, the Illinois Supreme Court judicially adopted comparative negligence in its “pure” form, holding that where a plaintiff is found to have contributed to his own injury by not exercising reasonable care for his safety, his damages “are simply reduced by the percentage of fault attributable to him.” (Alvis v. Ribar (1981), 85 Ill. 2d 1, 25, 28, 421 N.E.2d 886, 897, 898.) Although the legislature subsequently enacted a statute adopting the “modified” form of comparative negligence for cases where the cause of action accrued on or after November 25, 1986 (Ill. Rev. Stat. 1987, ch. 110, par. 2—116), the statute has no effect on causes of action, such as the plaintiff’s, which accrued prior to that date. Such cases require the application of comparative negligence principles in conformance with -the holding of Alvis.

As previously noted, plaintiff and defendant railroad suggested different approaches to the problem faced by the court in attempting to use IPI Civil 2d No. 120.04 as the burden of proof instruction. Plaintiff’s instruction No. 21, tendered during the instructions conference, tracked the wording of IPI Civil 2d No. 120.04, but entirely deleted the third proposition. In its stead, plaintiff submitted comparative negligence instructions reflecting the Alvis principles. The railroad tendered defendant’s instruction No. 20, which substantially incorporated the same IPI Civil 2d No. 120.04 elements, but replaced the third proposition with the following:

“Third: That Daniel Colls did not appreciate that the instrumentality on the premises involved a reasonably foreseeable risk of harm to himself.”

The trial judge rejected the railroad’s wording of the third proposition as an inaccurate statement of the law. However, he also expressed serious reservations about giving an instruction without any language to incorporate the element of the child’s inability to appreciate the risk. He therefore fashioned court’s instruction No. 1, which otherwise tracked the official version of IPI Civil 2d No. 120.04, but in place of the third proposition, provided the following:

“Third: That the condition on the [railroad’s] premises is likely to cause injury because of the inability of a child of the age, mental capacity and experience of Daniel Colls to appreciate the risk.”

Plaintiff objected, arguing that the court was adding an element of proof not contained in the pattern instruction, a step which was unnecessary because, without the contributory negligence language, the remainder of IPI Civil 2d No. 120.04 fully stated the applicable law.

The underlying premise of plaintiff’s foregoing objection may be succinctly stated as follows. The Kahn doctrine recognizes that landowners may have a duty to children when they knew or should have known that there was a condition on the premises which involved a reasonably foreseeable risk of harm to children. The element of foreseeability of risk to the children would not be satisfied in the presence of the children’s ability to appreciate that risk. Therefore, according to plaintiff, the “appreciation of risk” element is already contained in the first proposition of IPI Civil 2d No. 120.04. To rephrase it in terms of “appreciation of risk,” and incorporate it as a separate, third element of plaintiff’s burden, is not only repetitious but prejudicial, in that it requires plaintiff to “prove the element of foreseeability twice,” and places “an undue emphasis” on plaintiff’s burden. Plaintiff further suggests that the court erred in fashioning an instruction that placed in issue the inability of Daniel Colls, personally, to appreciate the risk, rather than the “general class of children” who, by reason of their immaturity, might not appreciate the risk. Finally, plaintiff maintains that the full set of jury instructions, by twice including the language of a minor’s standard of ordinary care, i.e., “child of the [decedent’s] age, mental capacity, and experience,” first in the burden of proof instruction and again in the context of comparative negligence, confused the jurors and further prejudiced her case. For reasons which follow, we find no abuse of the trial court’s discretion with respect to the burden of proof instruction which it gave.

We begin our analysis with Illinois Supreme Court Rule 239, relating to jury instructions, which states in pertinent part:

“Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law.” (107 Ill. 2d R. 239(a).)

In interpreting Rule 239(a), the supreme court has observed that pattern instructions, while of great value and importance, are not exempt from challenge, and should be used only where “they accurately state the law applicable in a case.” (Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 385, 438 N.E.2d 152, 157.) Where they do correctly and adequately charge the jury, IPI instructions should be used exclusively. (Lay v. Knapp (1981), 93 Ill. App. 3d 855, 859, 417 N.E.2d 1099, 1102.) Therefore, the first determination to be made by the trial judge is whether a tendered IPI instruction inaccurately or incompletely states the law under the facts of the case so as to justify modification. (Young v. Cerniak (1984), 126 Ill. App. 3d 952, 970, 467 N.E.2d 1045, 1057.) While there are situations in which an IPI instruction is inadequate, any departure from approved IPI instructions deserves careful scrutiny (Young, 126 Ill. App. 3d at 970, 467 N.E.2d at 1057), since non-IPI instructions “should be utilized with caution and only where necessary to provide a fair trial” (Willhite v. Goodman (1978), 64 Ill. App. 3d 273, 275, 381 N.E.2d 68, 69).

Regardless of whether IPI instructions are utilized, it is well settled that every litigant is entitled to have the jury instructed as to the law governing the case. (Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 872, 466 N.E.2d 1038, 1039.) Moreover, even if an instruction correctly states the law, it must be sufficiently clear so as not to confuse or mislead the jury. (Malek, 125 Ill. App. 3d at 872, 466 N.E.2d at 1039.) Nor should jury instructions unduly emphasize any particular matter. (Montefusco v. Cecon Construction Co. (1979), 74 Ill. App. 3d 319, 325, 392 N.E.2d 1103, 1107; Ryan v. Monson (1961), 33 Ill. App. 2d 406, 424, 179 N.E.2d 449, 458.) In analysing instructions, they are to be read as a series and considered in toto. (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 389, 502 N.E.2d 826, 837.) The test is whether, taken as a whole, the instructions are clear enough so as not to mislead and whether they fairly and accurately state the applicable law. (Friedman, 151 Ill. App. 3d at 388, 502 N.E.2d at 837.) That the jury might have been instructed in an alternative manner which would have been equally acceptable does not require reversal. (Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 533, 445 N.E.2d 844, 855.) Reversal for a new trial is required where the trial court erroneously refused an instruction and a party has been prejudiced thereby. Friedman, 151 Ill. App. 3d at 389, 502 N.E.2d at 837; Goodrick v. Bassick Co. (1978), 58 Ill. App. 3d 447, 453-54, 374 N.E.2d 1262, 1266.

In support of her position that the trial court’s burden of proof instruction inaccurately stated the applicable law and placed undue emphasis on certain aspects of that burden, plaintiff primarily relies on the case of Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill. App. 2d 5, 220 N.E.2d 43, affd (1969), 42 Ill. 2d 103, 245 N.E.2d 762. In Dickeson, a 14-year-old child attempted to climb aboard a slow-moving train on defendant’s right-of-way, only to be knocked off the train by a bridge girder and injured. On appeal following a jury verdict in favor of plaintiff, defendant railroad maintained that the jury was improperly instructed as to the import of the Kahn case because IPI Civil No. 120.04 (Illinois Pattern Jury Instructions, Civil, No. 120.04 (1961)), which was given, omits the requirement that the landowner must anticipate that children, because of their immaturity, will fail to appreciate the risk involved. The court discounted the railroad’s argument, stating as follows:

“As to the claim that the instruction left out the requirement that the landowner must anticipate that children, because of their immaturity, will fail to appreciate the risk involved, it is clear that had the jury found that children would have appreciated the risk involved in moving railroad trains, it would have to have found that there was no reasonably foreseeable risk of harm to children. Had the children been able to foresee the risk, they would not have gone on the trains, and there would have been no reasonably foreseeable harm that could come to them. We feel that the instruction fairly covers all matters included in the Kahn doctrine.” (Dickeson, 73 Ill. App. 2d at 32, 220 N.E.2d at 55-56.)

Of course, Dickeson was decided in 1965, before the adoption of comparative negligence. Whatever validity its rationale may have, it upheld use of IPI Civil No. 120.04, in its official, unmodified version, at a time when its third proposition, incorporating contributory negligence language, appropriately reflected the applicable