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App. 3d", "case_ids": [ 3576346 ], "weight": 2, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0472-01" ] }, { "cite": "453 N.E.2d 1133", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1138-39" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 3259, "char_count": 147405, "ocr_confidence": 0.767, "pagerank": { "raw": 9.092220916734769e-08, "percentile": 0.5057339250280615 }, "sha256": "862cc65d708a631b65b163e681afe940cecbd69a20bfbda8b1cfbb8bb27b8158", "simhash": "1:1234b1903a642457", "word_count": 24145 }, "last_updated": "2023-07-14T15:59:33.778469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NOHEMI COLLS, Adm\u2019r of the Estate of Daniel Colls, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiff, 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\u2019 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.\nOn 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\u2019s 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\u2019s 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\u2019s decedent as a \u201ctrespasser,\u201d where such status was irrelevant to the question of defendants\u2019 liability under the legal theory of the case.\nThe 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\u2019s 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.\nOn January 24, 1979, plaintiff filed her complaint, charging the railroad and the city with conduct proximately causing Daniel\u2019s 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\u2019s 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.\nOn April 8, 1980, plaintiff filed interrogatories to the railroad which, in part, requested as follows:\n\u201cPrior 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:\n(a) The name and last known residence and business address of any and all persons having such knowledge.\n(b) The date or dates on which such knowledge was learned or observations of person crossing [the] tracks was made.\n(c) For approximately how long prior to August 19, 1978, had such agent, employee or representative had such knowledge.\n* * *\nPrior 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\u2019s Complaint? If so, state the following:\n(a) The date or dates on which each such report was received.\n(b) The name and last known residence and business address of the person making each such report, and *** receiving each such report.\n(c) The nature of the complaint or report on each such occasion.\n(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.\u201d\nPlaintiff also filed, on April 8, 1980, a \u201cNotice to Produce [Documents],\u201d including:\n\u201cOne 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 ***.\u201d\nOn April 18, 1980, the railroad answered the interrogatory relating to agents\u2019 knowledge of persons walking on or near the tracks \u201cat and adjacent to\u201d the Irene track segment by stating that there was \u201c[n]o record of same.\u201d It answered the interrogatory requesting reports or complaints of persons on the right-of-way and tracks by stating, \u201cSee defendant\u2019s production response.\u201d Apparently, that answer referenced the railroad\u2019s \u201cResponse to Plaintiff\u2019s Notice to Produce,\u201d also filed on April 18, 1980, wherein the railroad answered the above-quoted request for police reports and similar documents by stating as follows:\n\u201cDefendant 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.\u201d (Emphasis added.)\nThe police report so described was provided to plaintiff, and was later introduced at trial during her case in chief. It contains the designation, \u201cCriminal Trespass to Land,\u201d and memorializes a complaint, received by \u201cD. Hahne\u201d on August 3,1978, in the following words:\n\u201cJuveniles on North West Line at Belmont daily between 0800 & 0830. Commuter trains Nos. 630 and 632 reporting incidents.\u201d\nThe report further describes the \u201cstatus of [the] investigation\u201d into the complaint as follows:\n\u201cReporting 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.\u201d\nThe 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.\nTrial 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\u2019s problem with \u201ctrespassing,\u201d or \u201cpeople c[oming] on [its] property without authorization.\u201d Plaintiff\u2019s objection to the use of the term \u201ctrespass\u201d was overruled. After the opening statements, plaintiff moved for a mistrial on grounds that defendant\u2019s characterization of Daniel Colls and his playmates as trespassers had tainted the jury\u2019s perception of decedent and was out of place in a trial where plaintiff\u2019s status had no bearing on defendants\u2019 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\u2019s motion.\nSeveral 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\u2019s property extends 50 feet from the center track, he determined that the tree house was 11 feet outside railroad property.\nBurke 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 \u201cgone.\u201d 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.\nPeter 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\u2019s 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 \u201cup to the railroad tracks.\u201d 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 \u201caround the rail bed and the viaduct along the rail[s].\u201d\nStudl further testified that he observed a \u201cdeteriorating\u201d and \u201ccrumbling\u201d retaining wall at a point \u201cup toward the tracks between the tracks and Irene [Avenue].\u201d 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 \u201cgrassy area\u201d 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.\nOn cross-examination, Studl further described the property as containing \u201clots of trees\u201d 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 \u201ca roar from the [Kennedy] expressway\u201d 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, \u201cthere w[ould be] a very large noise and the train w[ould be] there,\u201d an experience which struck him as \u201cfrightening.\u201d\nRichard 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.\nSusan Bivins corroborated her husband\u2019s 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.\nWilma Miller, Richard Bivins\u2019 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 \u201cevery day.\u201d She related that she sometimes complained to police officers in passing squad cars, attempting to have them \u201crun kids off the tracks and away from that area,\u201d but that the police responded that there was nothing that they could do.\nErnest 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 \u201cwalkway right up onto the tracks,\u201d 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.\nWicker 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.\nJudith Wicker, Ernest\u2019s 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\u2019s 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\u2019 school and was his friend. She recalled that Daniel had some talent for drawing.\nOn 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.\nJose Colls, Daniel\u2019s father, testified that his family, including his wife, Daniel, and Daniel\u2019s 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.\nThe 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\u2019s 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\u2019s testimony as to Daniel\u2019s interest in drawing. Her testimony concerning the events of the morning was substantially the same as her husband\u2019s. She specifically remembered Daniel\u2019s asking her permission to go with the boys \u201cto Albany [Street] to help finish building a tree house.\u201d\nJohn 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 \u201call that summer.\u201d 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.\nOn 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 \u201calmost every day\u201d 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.\nNineteen-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.\nWalsh related that about two weeks before the accident, he, Daniel, John Spaw, James Quinn, and another boy had started to build a \u201cclubhouse\u201d 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 \u201cclose enough to endanger [their] lives.\u201d 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.\nJames 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.\nJohn 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 \u201conto a cement wall which was about up to [his] neck.\u201d 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.\nSpaw 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 \u201cdown the street.\u201d 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, \u201cthe train,\u201d 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 \u201cjumped straight\u201d 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 \u201cthe green and yellow [train] and sparks from the wheels,\u201d and leaves flying around in the wind.\nOn 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 \u201coff in the distance.\u201d 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 \u201c[he]\u2019d run.\u201d 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.\nDonald 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 \u201cchutes,\u201d 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\u2019s bridge record did not indicate that there were warning signs, or any other signs, on the bridge.\nDale 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\u2019s police operations in Illinois. He first explained the railroad\u2019s 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\u2019s property, employees, passengers and cargo. (Ill. Rev. Stat. 1977, ch. 114, par. 98.) Hahne was then questioned about the railroad\u2019s police patrols along its commuter line from Chicago to the city\u2019s northwest suburbs, particularly the area around Kedzie and Belmont Avenues and the Avondale Yard. The following colloquy occurred:\n\u201cQ. [Railroad\u2019s attorney]: What experience in the summer of 1978 did the police force have with trespassers on the commuter lines?\nA. 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.\nI 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.\u201d\nAsked how the railroad\u2019s police force attempted to respond to this situation, Hahne explained that, in the Chicago metropolitan area, railroad police officers physically patrolled the railroad\u2019s 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.\nHahne identified plaintiff\u2019s 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\u2019s report of the action taken.\nThe witness was then asked to describe the \u201cappropriate response\u201d of a railroad police officer who encountered \u201ca child trespasser, a youngster up there [on the tracks],\u201d during the summer of 1978. Hahne testified that his officers confronted any person found on railroad property, but particularly juveniles. They warned juveniles \u201cof the dangers of such actions,\u201d 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\u2019 names of a juvenile. The incident report would further serve as a \u201cwarning card,\u201d which could be consulted in the event of another incident involving the same individual, when the officers might need to determine \u201cwhether or not *** to pursue it further criminally.\u201d\nHahne 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 \u201cask the parents\u2019 cooperation in monitoring the activities of the children,\u201d and would mention that additional incidents might result in \u201carrest and prosecution for trespassing.\u201d 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.\nDuring a sidebar, plaintiff\u2019s 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\u2019s decedent was struck by the train or at which he gained access to the tracks. Plaintiff\u2019s 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 \u201cwith respect to that entire strip of property, none of which *** wfould] mention Daniel Colls or any other kids testified to in th[e] case.\u201d Plaintiff\u2019s 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\u2019s 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.\nUpon returning to the witness stand, Hahne testified that he had searched the railroad\u2019s 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 \u201cC & NW Group Exhibit No.5,\u201d to the railroad\u2019s attorney, who then presented them to plaintiff\u2019s counsel. Plaintiff\u2019s 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\u2019s case was clearly prejudiced by his having received only one of these reports (plaintiff\u2019s exhibit No. 21) during discovery, but none of the others, where plaintiff\u2019s complaint alleged the railroad\u2019s 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.\nCounsel for C & NW contended that he had been operating under a belief that plaintiff\u2019s 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\u2019s attorney stated that he knew nothing of such an agreement and that nothing in his files reflected one. Nor could the railroad\u2019s 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\u2019s counsel stated his belief that the nondisclosure of these \u201ccritical\u201d documents constituted grounds for a mistrial, and so moved. Plaintiff\u2019s motion was denied.\nOn 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 \u201chot spot,\u201d in comparison to other areas, because criminal damage to property and theft from freight cars occurred there, in addition to \u201csimple trespass.\u201d 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, \u201calmost on a daily basis in the summertime.\u201d From these vantage points, if the officers observed an \u201cadult slinking along\u201d 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 \u201cassume [that] they were just trespassers,\u201d 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.\nOn 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 \u201capproximately 70 mile an hour track,\u201d 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\u2019s headlight would be the first thing to catch the person\u2019s 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\u2019s counsel, Hahne agreed that if the officer who investigated the complaints of \u201cjuveniles daily\u201d 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\u2019s attorney, Hahne further testified that individuals had unrestricted access to the railroad tracks from the Plywood Minnesota parking lot.\nAt the close of all the evidence, the defendants\u2019 motions for a directed verdict were denied. The railroad also moved to strike certain allegations of the plaintiff\u2019s 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\u2019s motion to strike did not include plaintiff\u2019s allegations relating to fencing or the posting of warning signs. Plaintiff\u2019s 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\u2019 arguments, the court granted the railroad\u2019s motion to strike.\nThe city then moved to strike every allegation of negligent conduct against it, with the exception of \u201cfailure to barricade or fence off\u201d 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\u2019s counsel objected to the striking of those allegations concerning the city\u2019s 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\u2019s duty to fence, sustained the city\u2019s motion to strike as presented.\nDuring 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\u2019s burden of proof in a negligence case involving a child injured by a dangerous condition on defendant\u2019s 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\u2019s contributory negligence a complete bar to recovery. Instead, the trial judge drafted a court\u2019s 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\u2019s 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\u2019s failure to use ordinary care, resulting in a reduction of damages); IPI Civil 2d No. A10.04 (Supp. 1986) (stating the defendant\u2019s duty to use ordinary care); IPI Civil 2d No. 10.05 (defining a minor\u2019s standard of \u201cordinary care\u201d); and IPI Civil 2d No. 15.01 (explaining \u201cproximate cause\u201d). Over the railroad\u2019s objection, the trial judge refused to instruct on the definition of \u201ctrespasser\u201d (IPI Civil 2d No. 120.01), a term appearing in no other instruction that the jury received.\nCourt 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\u2019 property and the city\u2019s failure to post warning signs, which had been stricken from her complaint. The issues instruction which the jury received, over plaintiff\u2019s objection, stated in pertinent part:\n\u201cThe plaintiff claims that her decedent was fatally injured *** due to one or more of the following instances of wrongful conduct:\n1. Defendant [Railroad], in failing to barricade or fence off its elevated railroad tracks.\n2. Defendant [Railroad], in failing to maintain warning signs on and around said railroad tracks.\n3. Defendant, City of Chicago, in failing to failing to barricade or fence off its property.\nThe plaintiff further claims that one or more of the foregoing was a proximate cause of decedent\u2019s injuries.\u201d\nFollowing 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.\nOpinion\nPlaintiff 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\u2019s 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\u2019s 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.\nThe 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\u2019s 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\u2019s 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\u2019 duty to the trespassing child, the court rejected the use of the \u201cattractive nuisance\u201d label to define an exception to general rule. .Rather than recognize the presence of an \u201cattractive\u201d or alluring condition on a defendant\u2019s land as providing the basis for the defendant\u2019s duty to certain trespassing children (the \u201cattractive nuisance doctrine\u201d), the court noted that the exception was actually grounded in \u201cthe customary rules of ordinary negligence cases.\u201d (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:\n\u201cIt 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.\u201d Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.\nThe Kahn decision, while discarding the older \u201cattractive nuisance\u201d 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 \u201cArtificial Conditions Highly Dangerous to Trespassing Children\u201d are delineated:\n\u201cA possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if\n(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\n(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\n(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\n(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\n(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.\u201d (Emphasis added.) Restatement (Second) of Torts \u00a7339, at 197 (1965).\nAs 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:\n\u201cAttractive Nuisance \u2014 Injury to Children Plaintiff has the burden of proving each of the following propositions:\nFirst: That a condition existed on the [defendant\u2019s] premises which the defendant knew, or, in the exercise of ordinary care should have known, involved a reasonably foreseeable risk of harm to children.\nSecond: 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.\nThird: 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.\nFourth: That the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.\nFifth: That the condition was a proximate cause of the injury or damage to the plaintiff.\nIf 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.\u201d (Emphasis added.) (Illinois Pattern Jury Instructions, Civil, No. 120.04 (2d ed. 1971).)\nThe comment further notes, consistent with Kahn, that \u201c[t]he words \u2018Attractive Nuisance\u2019 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.\u201d IPI Civil 2d No. 120.04, Comment, at 354-55.\nIn attempting to provide the jury, in March 1988, with an accurate instruction on the plaintiff\u2019s 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\u2019s 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\u2019s own contributory negligence still operated as complete bar to recovery. Ten years later, however, the Illinois Supreme Court judicially adopted comparative negligence in its \u201cpure\u201d 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 \u201care simply reduced by the percentage of fault attributable to him.\u201d (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 \u201cmodified\u201d 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\u2014116), the statute has no effect on causes of action, such as the plaintiff\u2019s, which accrued prior to that date. Such cases require the application of comparative negligence principles in conformance with -the holding of Alvis.\nAs 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\u2019s 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\u2019s instruction No. 20, which substantially incorporated the same IPI Civil 2d No. 120.04 elements, but replaced the third proposition with the following:\n\u201cThird: That Daniel Colls did not appreciate that the instrumentality on the premises involved a reasonably foreseeable risk of harm to himself.\u201d\nThe trial judge rejected the railroad\u2019s 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\u2019s inability to appreciate the risk. He therefore fashioned court\u2019s 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:\n\u201cThird: That the condition on the [railroad\u2019s] 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.\u201d\nPlaintiff 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.\nThe underlying premise of plaintiff\u2019s 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\u2019s ability to appreciate that risk. Therefore, according to plaintiff, the \u201cappreciation of risk\u201d element is already contained in the first proposition of IPI Civil 2d No. 120.04. To rephrase it in terms of \u201cappreciation of risk,\u201d and incorporate it as a separate, third element of plaintiff\u2019s burden, is not only repetitious but prejudicial, in that it requires plaintiff to \u201cprove the element of foreseeability twice,\u201d and places \u201can undue emphasis\u201d on plaintiff\u2019s 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 \u201cgeneral class of children\u201d 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\u2019s standard of ordinary care, i.e., \u201cchild of the [decedent\u2019s] age, mental capacity, and experience,\u201d 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\u2019s discretion with respect to the burden of proof instruction which it gave.\nWe begin our analysis with Illinois Supreme Court Rule 239, relating to jury instructions, which states in pertinent part:\n\u201cWhenever 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.\u201d (107 Ill. 2d R. 239(a).)\nIn 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 \u201cthey accurately state the law applicable in a case.\u201d (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 \u201cshould be utilized with caution and only where necessary to provide a fair trial\u201d (Willhite v. Goodman (1978), 64 Ill. App. 3d 273, 275, 381 N.E.2d 68, 69).\nRegardless 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.\nIn support of her position that the trial court\u2019s 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\u2019s 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\u2019s argument, stating as follows:\n\u201cAs 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.\u201d (Dickeson, 73 Ill. App. 2d at 32, 220 N.E.2d at 55-56.)\nOf 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 law.\nIn countering plaintiff\u2019s argument, C & NW calls our attention to the more recent case of Friedman v. Park District (1986), 151 Ill. App. 3d 374, 502 N.E.2d 826, which involved a 13-year-old girl injured in a sledding accident. In Friedman, the plaintiff objected to defendant\u2019s tendered burden of proof instruction, which, similarly to the railroad\u2019s tendered but refused instruction in the case at bar, dictated that plaintiff must prove that the park district knew of the condition of the premises, realized that it presented an unreasonable risk to \u201cplaintiff,\u201d and should have expected that the \u201cplaintiff\u201d would not have appreciated the danger or would fail to protect \u201cherself\u201d against it. The appellate court, noting that plaintiff had provided no supporting authority for her contention, stated:\n\u201cWe find the instruction to be consistent with the applicable law in this area, and absent authority to the contrary, find plaintiff\u2019s argument to be without merit.\u201d Friedman, 151 Ill. App. 3d at 387, 502 N.E.2d at 836.\nThe respective arguments of plaintiff and defendant railroad were carefully considered by the trial judge, who expressed reservations about stating defendant\u2019s duty in terms of foreseeability of a particular individual being on the railroad tracks. At the same time, he stated that the burden of proof instruction presented a difficult problem because the third proposition should not remain in IPI Civil 2d No. 120.04 after the Alvis decision abolishing contributory negligence as a bar to recovery. However, deleting the third proposition meant that certain factors relevant to the jury\u2019s consideration of \u201cappreciation of risk\u201d would not be included. Thus, his solution was court\u2019s instruction No. 1, with an additional instruction on comparative negligence incorporating the minor\u2019s standard of ordinary care.\nThe difficulty and confusion surrounding the burden of proof issue in this case are entirely understandable. In order to explain some sources of the confusion and our resolution of the question presented, we turn to several commentaries and other scholarly sources which have addressed various aspects of the \u201cappreciation of risk\u201d factor in context of the \u201cattractive nuisance\u201d doctrine and its modern variants. First, it is evident from our research that, regardless of comparative negligence, the particular child\u2019s appreciation of the risk, if established in fact, has consistently been recognized as sufficient to free a defendant landowner of all liability for the child\u2019s injuries. As the comment on clause (c) of section 339, Restatement (Second) of Torts, explains:\n\u201cA possessor of land is *** under a duty to exercise reasonable care to keep so much of his land as he knows to be subject to the trespass of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them. *** The purpose of the duty is to protect children from dangers which they do not appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known and appreciated danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved, but none the less chooses to encounter it out of recklessness or bravado.\u201d (Restatement (Second) of Torts \u00a7339, comment to, at 204 (1965).)\nBy way of illustration, the same comment presents the hypothetical situation of two youngsters who venture onto a railroad\u2019s land and meddle with an unlocked turntable, resulting in each case with injuries to a foot which gets caught in the turntable. Although the railroad knows that neighborhood children frequently trespass there, and that the turntable involves an unreasonable risk of harm to such children, the railroad is not liable to either child. The first is a boy 16 years of age, \u201cwhose maturity and experience make him fully understand and appreciate the danger.\u201d The second is a nine-year-old son of a railroad engineer who has been repeatedly warned against the turntable, and so fully appreciates the risk as well. Restatement (Second) of Torts \u00a7339, comment to, at 204-05 (1965).\nIn another major treatise, the importance of the specific child\u2019s understanding of the risk is addressed in the following terms:\n\u201cThe child, because of his immaturity, either must not discover the condition or must not in fact appreciate the danger involved. Since the principal reason for the rule distinguishing trespassing children from trespassing adults is the inability of the child to protect himself, the courts have been quite firm in their insistence that if the child is fully aware of the condition, understands the risk which it carries, and is quite able to avoid it, he stands in no better position than \u25a0 an adult with similar knowledge and understanding.\u201d (Emphasis added.) (W. Keeton, Prosser & Keeton on Torts \u00a759, at 408 (5th ed. 1984).)\nThe authors continue by distinguishing the related but distinct concepts of appreciation of the risk and contributory negligence:\n\u201cThis [full appreciation of the risk] is not merely a matter of contributory negligence or assumption of risk, but of lack of duty to the child. Thus the fact that the danger is obvious even to a child, or that the child has been warned about it, may be enough to defeat his recovery, where the child was thereby made fully aware of the situation.\u201d (Emphasis added.) W. Keeton, Prosser & Keeton on Torts \u00a759, at 409 (5th ed. 1984).\nIn addition to the specific child\u2019s individual ability to appreciate the risk, if such can be established, another factor that will completely defeat recovery is a condition on the land, which, although known to the occupier, is \u201cnot one from which any unreasonable danger to children is reasonably to be anticipated.\u201d (W. Keeton, Prosser & Keeton on Torts \u00a759, at 405 (5th ed. 1984).) In other words, there will be no duty to remedy a situation that is not unreasonably dangerous. As phrased in the first proposition of IPI Civil 2d No. 120.04, a plaintiff must prove that a condition existed on the premises that the defendant knew involved \u201ca reasonably foreseeable risk of harm to children.\u201d A particularly lucid treatment of this concept appears in an earlier law review article by Dean Prosser, wherein he writes:\n\u201cWhile it is evident that there must be some aggravated danger to the child, greater than the ordinary risks of his daily life, it is equally clear that this cannot be reduced to a formula* Perhaps no better statement of the problem has ever been made than that of the Oklahoma court in Lone Star Gas Co. v. Parsons:\n\u2018So in these cases we have the question of how uncommon is the instrumentality; how unusually dangerous it is; *** how feasible it is to avoid danger of harm; how great would be the burden of avoiding or lessening danger of harm; and the effect of imposing such duty. And one outstanding inquiry that is often given scant attention by the judge is the apparent intelligence of the child, his intelligent consciousness of the circumstances, and that he had reached the age where he would not reasonably be expected- to tamper because of his appreciation of danger *** so that no duty to protect him could reasonably be imposed.\u2019\n* * *\nThe last factor mentioned by the Oklahoma court, that of whether the child can reasonably be expected to comprehend the situation, often is of controlling importance in avoiding liability. *** The question here is not whether he does in fact understand it, although that too has its importance. It is what the possessor of the land may expect of him.\u201d (Emphasis added.) Prosser, Trespassing Children, 47 Calif. L. Rev. 427, 354-56 (1959), quoting Lone Star Gas Co. v. Parsons (1932), 159 Okla. 52, 56, 14 P.2d 369, 373.\nThus, two related but distinct considerations may enter into a determination of landowner liability to a trespassing child: (1) what the defendant may reasonably expect the child to appreciate and understand about the danger presented, considering his age or immaturity; and (2) what the particular child, because of special knowledge, experience, or prior warning, in fact appreciated or understood. A case decided by the supreme court of California is particularly helpful in illustrating the importance of both the minor\u2019s age and his actual knowledge in determining whether any duty is owed him. (O\u2019Keefe v. South End Rowing Club (1966), 64 Cal. 2d 729, 414 P.2d 830, 51 Cal. Rptr. 534.) In O\u2019Keefe, a 15-year-old boy was injured while diving from a pier at a private club\u2019s waterfront property, where he was a trespasser. The court, having officially adopted section 339 of the Restatement Second of Torts, proceeded to apply the Restatement factors to the question of whether the youth\u2019s claim against the rowing club had been properly dismissed. After pointing out that there was no evidence whatsoever that the club owner knew or had reason to know of children any younger than high school age coming on the property, making teenagers the only trespassers foreseeable, the court discussed the plaintiff\u2019s age and experience in terms of appreciation of risk:\n\u201cThe evidence demonstrates, moreover, that plaintiff had actual knowledge and appreciation of the danger. The condition of clause (c) of section 339 is fulfilled only when the injured child did not in fact \u2018realize the risk involved.\u2019 \u2018The ability to appreciate the danger varies, of course, with the age of the child and there can be no recovery if the child is of sufficient age and mental capacity to look out for himself under the circumstances presented. [Citations.]\u2019 [Citation.] ***\nThe most obvious fact is plaintiff\u2019s age. Although we have laid down no definite age limit beyond which the rule of section 339 cannot apply, the age of the child remains an important element in the total picture of each case. *** He was in the second half of his sophomore year in high school, and was receiving passing grades in all his courses. ***\n* * *\nNor was plaintiff a novice in the arts of swimming and diving. He had been swimming for some three or four years prior to the accident, and had received swimming and diving lessons in high school. ***\nFinally, plaintiff\u2019s knowledge of the actual diving conditions at defendant\u2019s pier was extensive. *** Plaintiff agreed that he \u2018knew\u2019 that the depth of the water was \u2018somewhere between five and six feet\u2019 ***.\n* * *\n*** \u2018In the light of the undisputed facts now before us, there is no sound basis for concluding that the condition which caused plaintiff\u2019s injury should have been recognized as constituting an unreasonably great risk of serious bodily harm which plaintiff was unable to discover or appreciate because of [his] immaturity.\u2019 [Citation.] It follows that no special duty toward plaintiff arose by virtue of defendant\u2019s ownership of the property.\u201d (Emphasis added.) O\u2019Keefe, 64 Cal. 2d at 743, 744, 745-46, 414 P.2d at 839, 840, 841, 51 Cal. Rptr. at 543, 544, 545.\nMore recently, in McDonald v. Consolidated Rail Corp. (1987), 399 Mass. 25, 502 N.E.2d 521, the highest court of Massachusetts addressed a question substantially similar to that raised by plaintiff with respect to a court-drafted burden of proof instruction and its \u201cappreciation of risk\u201d elements. On appeal from a jury verdict for the defendant railroad, a 16-year-old plaintiff struck and injured by a freight train on a girded railroad trestle challenged the trial court\u2019s refusal of his tendered jury instruction, which read:\n\u201c \u2018In addition to the duty of the railroad created by statute, the Commonwealth of Massachusetts also places a common law duty of reasonable care by the Defendant to prevent harm to foreseeable child trespassers. Soule v. Massachusetts Electric Company, 378 Mass. 177[, 390 N.E.2d 716] *** (1979).\u2019 \u201d (399 Mass. at 28, 502 N.E.2d at 524.)\nThe trial judge\u2019s instruction, by contrast, \u201crepeatedly emphasized that the duty arises at common law only where the jury find the additional fact that the plaintiff was \u2018too young to appreciate the risk and dan ger involved,\u2019 or that he \u2018lacked the understanding to evaluate the peril.\u2019 \u201d (McDonald, 399 Mass, at 28, 502 N.E.2d at 524.) The reviewing court\u2019s rationale in resolving the issue against McDonald is instructive, especially in light of plaintiff\u2019s argument that defendants\u2019 duty to Daniel Colls would be established by their knowledge of conditions on the land presenting an unreasonable risk of harm to children, generally, or to a general class of children who might be incapable of appreciating the risk. The court explained:\n\u201cA careful reading of Soule makes it clear that the duty of reasonable care owed by a landowner to a child trespasser is applicable only where a plaintiff would fail to appreciate his peril because of his youth. *** [0]ur decision in Soule is read properly to recognize a common law rule that is indistinguishable in its elements from [our] statute or from its twin, \u00a7339 of the Restatement (Second) of Torts. Both the Restatement \u00a7339 and the statute, when read in light of our decision in Schofield v. Merrill, supra, yield the result that no duty of reasonable care is owed to foreseeable child trespassers unless they are shown to have been persons who \u2018because of their youth do not discover the condition or realize the risk involved.\u2019 \u201d (Emphasis added.) McDonald, 399 Mass, at 29, 502 N.E.2d at 524.\nHowever, every jurisdiction has not applied the doctrine of section 339 in exactly the same manner. Another commentator, discussing the treatment of child trespassing cases in the various jurisdictions, explained the differing ways in which questions determinative of a defendant\u2019s liability can be presented to the trier of fact, as follows:\n\u201c[C]ases considering the effect of the child\u2019s age and mentality upon the application of the doctrine have been concerned primarily with either or both of the following crucial questions: (1) whether in view of the child\u2019s age and mentality, or presumed mentality, the dangerous condition or hazard to which the child was exposed was one which the child should have understood or appreciated and, therefore, protected himself against, or, in other words, whether the danger or hazard was one which the defendant reasonably could have expected the child would perceive, appreciate, and avoid, and (2) whether the child, in view of his age and mentality and the other facts and circumstances of the case, did in fact understand or appreciate the danger but nevertheless exposed himself to it.\nIn some of the cases the problem of the child\u2019s presumed or actual perception and appreciation of the danger has been regarded as bearing upon, or at least discussed in terms of, the existence, scope, and breach of the defendant\u2019s duty to the child.\nIn other cases, the same or substantially similar problem as to the child\u2019s perception of the danger is regarded as bearing upon, or discussed in terms of, the child\u2019s own contributory fault.\u201d Annot., 16 A.L.R.3d 55 (1967).\nClearly, the \u201cappreciation of risk\u201d factor was presented to jurors in Illinois, by means of IPI Civil 2d No. 120.04, in terms of contributory fault. As with any of the other elements in the instruction, a finding against the plaintiff, that the child was contributorily negligent, would totally bar any recovery. In other words, such a finding would preclude, if not the application of the Kahn doctrine or a duty to the child, then at least any finding of liability to that child on the part of the landowner. As the same commentator further explained:\n\u201cFor example, it is possible to argue or reason that where the hazard or danger was one which the child should, or in fact actually did, understand or appreciate, then the defendant owed no duty to the child to protect him against the danger and could not be held liable for a breach of duty (that is, negligence).\nSomewhat similarly, at least insofar as the ultimate result is concerned, it also may be reasoned or argued that since the danger or hazard was one which the child should, or actually did, understand or appreciate, the child was \u2018contributorily negligent\u2019 or \u2018assumed the risk\u2019 in exposing himself to it, and, therefore, the defendant could not be held liable.\u201d (Emphasis added.) Annot., 16 A.L.R.3d 56 (1967).\nSpeaking particularly of jurisdictions which have accepted or have followed section 339 of the Restatement, he goes on to explain:\n\u201cUnder the rule of [section 339], the duty which the land possessor owes to trespassing children is phrased objectively in terms of his duty to children as a class, and where the other requirements of the rule are met, it is said that the possessor may be held liable for exposing \u2018children\u2019 who \u2018because of their youth do not discover the condition or realize the risk involved\u2019 to an \u2018unreasonable risk\u2019 of harm. *** [A]s explained in the comments [to section 339], the rule of [the section], seems to be inclusive of both an objective test as to whether the danger was one which a child of the age and mentality involved should have perceived, and also of a subjective test as to whether the danger was in fact perceived by the particular child. The revised comments to Restatement, Torts 2d \u00a7339, make it clear that the rule is inapplicable both to dangers which children \u2018should\u2019 or \u2018can be expected to\u2019 observe and appreciate, and to dangers which are in fact fully appreciated by the particular child involved.\u201d (Emphasis added.) Annot., 16 A.L.R.3d 57-58 (1967).\nWe next consider how the Illinois courts, specifically, have interpreted and applied the Kahn principles. Initially, we note that our supreme court has expressly stated that the Kahn decision \u201cbrought Illinois law into harmony with section 339 of the Restatement (Second) of Torts.\u201d Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180.\nLike those in many other jurisdictions, courts in this State have determined that certain dangers, such as fire, water, or falling from a height, pose risks which are \u201cobvious,\u201d and thus assumed to be fully appreciated by any child of an age to be allowed at large. (See Corcoran, 73 Ill. 2d at 327, 383 N.E.2d at 180; Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 400, 502 N.E.2d 846, 848.) As a matter of law, a landowner has no duty to remedy such conditions or protect against such dangers. Plaintiff relies on two supreme court cases involving such \u201cobvious dangers\u201d to support her contention that the applicable law on plaintiff\u2019s burden of proof was fully stated in IPI Civil 2d No. 120.04, absent its third proposition.\nIn Corcoran, the court upheld an appellate decision dismissing the plaintiff\u2019s complaint against the village and Lake County for negligence allegedly causing severe injuries to a two-year-old child who fell into a ditch in a neighborhood park. In the context of its holding, the court discussed a landowner\u2019s duty under the Kahn doctrine as follows:\n\u201cUnder Kahn, 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\u2019s injury was a dangerous condition on the premises. If both of these prerequisites are met, it is deemed that harm to children is sufficiently foreseeable for the law to impel an owner or occupier of land to remedy the condition.\nAs Kahn sets forth, a dangerous condition is not that which creates an unreasonable risk of harm to the general class of persons who might frequent the premises. It is one which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved.\u201d (Emphasis in last paragraph added; other emphasis in original.) (Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.)\nThe court went on to explain that unless a defendant has reason to know that children of very tender age are likely to roam unattended on the premises, the law will impose a duty only to remedy conditions which are dangerous to children generally, i.e., to those old enough to roam unattended. Because the plaintiff\u2019s complaint had alleged defendants\u2019 knowledge of children frequenting the premises, but not children of Matthew Corcoran\u2019s tender age, specifically, the complaint would only state a cause of action if it could be determined that the ditch was dangerous to children generally. (Corcoran, 73 Ill. 2d at 327, 383 N.E.2d at 180.) Having decided that the ditch in question would expose children to risks no greater than those which they would generally be expected to recognize and appreciate, the court found that plaintiff had not stated a cause of action and that her complaint should have been dismissed.\nWhile Corcoran provides that a defendant\u2019s duty will be established where a plaintiff proves that the child\u2019s injury was caused by a condition dangerous to those children who are old enough to be out and about unattended and who foreseeably wander onto his premises, and will not be established where the dangerousness of the condition is obvious to such children, the opinion does not deal specifically with what factors will preclude liability even if such a duty can be initially established. It was evident that the plaintiff in Corcoran would be unable to establish the elements of the Kahn doctrine under any set of facts presented at trial, and therefore, the lawsuit was appropriately dismissed on the basis of the pleadings. Moreover, there was no basis for any discussion in Corcoran of the child\u2019s appreciation of the risk, or his contributory negligence, or jury instructions. Finally, we note that Corcoran was decided several years before the Alvis decision adopting comparative negligence. At that time, even if a plaintiff could prove foreseeability and establish that the cost and inconvenience of remedying the situation was minimal, a finding that the particular child was at all contributorily negligent would result in a judgment for defendants because, consistent with IPI Civil 2d No. 120.04, a trier of fact could not find them liable. Thus, while it is clear that the parameters of a defendant\u2019s duty under the Kahn doctrine in Illinois, as explained in Corcoran, would not be the same as those set forth by the Massachusetts court in the passages from' the McDonald case which we have quoted, it is questionable whether the Kahn doctrine would remain in harmony with section 339, including clause (c) of that section, where the application of pure comparative negligence, as opposed to a finding of traditional contributory negligence as an absolute bar, permitted a sizable recovery to a plaintiff who was of an age and experience to have fully appreciated the risk, or who did, in fact, appreciate the risk, but may have been somewhat at fault due to carelessness or inattention.\nSix years after Corcoran, the supreme court decided another case involving what the majority determined to an \u201cobvious\u201d hazard on defendants\u2019 property. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.) In Cope, the court affirmed an order of the appellate court, holding that the defendants were entitled to a judgment n.o.v. because they owed no duty to plaintiff\u2019s decedent as a matter of law. The jury had returned a verdict in favor of the plaintiff, whose seven-year-old son had drowned in 1977 after falling through the ice partially covering a retention pond at their apartment complex. The jury had also answered special interrogatories finding the plaintiff and his father not guilty of contributory negligence. At the time of the accident, the pond was approximately one-third covered with ice, which broke under the child when he and two friends wandered out on it. It was established at trial that the defendant developers were well aware that young children played and fished at the pond, which, unlike the playground on the premises, had not been designed for recreational use. The court restated the Corcoran definition of dangerous condition as \u201cone which is likely to cause injury to children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks.\u201d (Emphasis added.) (Cope, 102 Ill. 2d at 286, 464 N.E.2d at 1027.) It then concluded that the retention pond was not a \u201cdangerous condition\u201d as defined in Corcoran because it posed only the danger of an ordinary body of water, a danger which any child could be expected to appreciate and avoid. Cope, 102 Ill. 2d at 289, 464 N.E.2d at 1028.\nInterestingly, however, the majority opinion in Cope concludes by referring to defendants\u2019 duty in terms of the individual child\u2019s appreciation of the risk:\n\u201cThe [partially frozen retention] pond was an ordinary body of water which, as any other, presented the risk of drowning. We cannot say that it presented perils that were not appreciated by plaintiff\u2019s decedent. Accordingly, we hold that the defendants owed no duty to plaintiff\u2019s decedent as a matter of law.\u201d (Cope, 102 Ill. 2d at 289, 464 N.E.2d at 1028.)\nAlso noteworthy is the following language chosen by Justice Clark, who, with Justices Goldenhersh and Simon, dissented from the majority opinion on grounds that testimony about the particular characteristics of the pond precluded the entry of judgment n.o.v. for the defendants:\n\u201cI cannot agree with the majority of this court that the defendants in the case at bar owed no duty to plaintiff\u2019s decedent as a matter of law. I believe that the questions of whether the retention pond was characterized by the developer as a \u2018recreational facility,\u2019 whether the retention pond was an \u2018ordinary body of water,\u2019 whether plaintiff\u2019s decedent appreciated the perils the water presented, and whether the retention pond created a reasonably foreseeable risk of harm (the test for assessing liability), were all matters for determination by the jury.\n* * *\nI do not agree that a seven-year-old can appreciate the fact that water that- is partially frozen actually creates a greater risk of drowning ***. It may be apparent that if you step off the edge of a ditch you will fall in the hole. I do not think it is as obvious that if you stand on the frozen edge of a pond you will drown. In any event, *** these issues were factual determinations to be made by the jury ***.\u201d (First and third emphasis in original; other emphasis added.) (Cope, 102 Ill. 2d at 289-90, 293, 464 N.E.2d at 1028-29, 1030 (Clark, J., dissenting, joined by Goldenhersh and Simon, JJ.).)\nJustice Simon, adding a separate dissent, joined by Justice Clark, further observed:\n\u201cIn the last paragraph of its opinion the majority states that it \u2018cannot say that it [the retention pond] presented perils that were not appreciated by plaintiff\u2019s decedent.\u2019 [Citation.] Here the appellate court ordered the entry of a judgment n.o.v., but the court\u2019s conclusion does not satisfy the strict standard for granting a defendant a judgment n.o.v. announced in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510. That case directs that a defendant is entitled to a judgment notwithstanding the verdict when the evidence viewed in its aspects most favorable to the plaintiff so overwhelmingly favors the defendant that no verdict could ever stand. *** I believe that to satisfy the Pedrick standard, it is necessary for the majority to say affirmatively either that the retention pond presented no perils or dangers to a seven-year-old boy or that, if it did present such perils or dangers, they were fully appreciated by plaintiff\u2019s decedent.\u201d (Emphasis added.) Cope, 102 Ill. 2d at 293-94, 464 N.E.2d at 1031 (Simon, J., dissenting, joined by Clark, J.).\nOur research reveals that numerous Illinois appellate decisions include language and reasoning supportive of the trial court\u2019s decision to incorporate an appreciation-of-risk proposition framed in terms of the injured child\u2019s age and experience. For example, in Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 393 N.E.2d 725, where a 15-year-old plaintiff brought a negligence action to recover for injuries sustained while walking on top of a fence, the court first observed that the plaintiff\u2019s age alone would not prevent the Kahn principles from applying. The court then continued:\n\u201cFor liability to be imposed upon an owner or occupier of land under the rule in Kahn, the child must be of such an age and experience as to be incapable of appreciating the danger involved in his or her activities. Therefore, no action may be maintained if children of a similar age and experience as the plaintiff are capable of understanding the danger involved. (See Sahara v. Ragnar Benson, Inc. (1977), 52 Ill. App. 3d 119, 367 N.E.2d 233; Merkousko v. Janik (1973), 14 Ill. App. 3d 343, 302 N.E.2d 390.) We believe that the plaintiff was of sufficient age and experience to appreciate the danger involved ***. We, therefore, conclude that count II was properly dismissed against the City.\u201d (Emphasis added.) Warchol, 75 Ill. App. 3d at 296, 393 N.E.2d at 731.\nIn Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133, the court first found that a tree stump with a tendency to roll was not a condition that posed any greater risk to children generally than those to which they are exposed in their everyday lives. It therefore held that entry of summary judgment was proper against a 14-year-old plaintiff who stood on the log and fell off, because the condition was not a \u201cdangerous\u201d one, as defined in Corcoran, and therefore no duty was owed to plaintiff. However, the court continued, as follows:\n\u201cWhile the absence of a dangerous condition is alone fatal to a [Kahn] cause of action, we proceed nonetheless to an analysis of plaintiff\u2019s contention regarding the third element of the Kahn test. Plaintiff emphasizes several facts from the record to support her position that she was unable to perceive the risk of standing on the log. Plaintiff alludes to the fact that she contracted spinal meningitis as a child and as a consequence, was forced to stay out of school for two years. Plaintiff fails, however, to show how her previous illness affected her ability to perceive the risk of standing on the log. *** Thus, her prior medical condition is irrelevant to the determination whether she could perceive the risk involved in standing on the stump.\nIn addition ***, plaintiff also argues that her testimony indicates she had no familiarity with logs, had never stood on one or on a similarly round object, and was unaware that a log could roll. This fact, plaintiff argues, in combination with the testimony of defendant and his wife that they had admonished children in the past not to play on the logs *** demonstrates that a material fact exists whether plaintiff appreciated the risk.\nThe court in Kahn stated that liability exists when young children because of their immaturity are incapable of appreciating the risk attending the dangerous agency. [Citations.] This test is objective for it does not focus on the specific plaintiff\u2019s appreciation of risk, but rather on the risk appreciated by young children of a similar age and experience. [Citations.] *** [W]hile plaintiff testified she didn\u2019t appreciate the risk, we conclude as a matter of law that no similarly situated child could fail to appreciate the risk of standing on the log.\u201d (Emphasis added.) Fuller, 117 Ill. App. 3d at 941-42, 453 N.E.2d at 1138-39.\nTwo other appellate cases illustrate the courts\u2019 perception that the \u201cobvious dangers\u201d rule of Corcoran and Cope coexists with a separate objective test for the particular child\u2019s appreciation of the risk. In Durham v. Forest Preserve District (1986), 152 Ill. App. 3d 472, 504 N.E.2d 899, this court stated:\n\u201cIn the instant case, the drowning occurred in an ordinary pond as it did in Cope, Weber, and Prince. ***\nDurham was 16 years of age and thus older than any of the children in Cope (7 years), Weber (9 years old), or Prince (15 years old). Regarding age, appreciating the risk is an objective test which focuses on children of similar age and experience. [Citation.] Moreover, \u2018any child of age to be allowed at large,\u2019 is expected to appreciate an obvious and open danger. [Citations.]\u201d (Durham, 152 Ill. App. 3d at 477, 504 N.E.2d at 902.)\nSometimes appellate opinions have expressed the appreciation of risk factor in terms of precluding duty, rather than in terms of precluding liability or recovery, a posture which appears to conflict with the concept of duty as delineated in Corcoran, while at the same time reiterating the \u201cobvious risks\u201d rule in terms of lack of duty to children, generally. As this court recently stated:\n\u201cA landowner owes no duty to a child if children of a similar age and experience would be able to appreciate the dangers on the premises. [Citations.] There is no duty on the part of a landowner to remedy obvious risks which children know or should know are present, because they are expected to avoid dangers which are obvious and therefore no reasonably foreseeable risk of harm exists. [Citations.]\u201d (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 61, 545 N.E.2d 184, 187.)\nFinally, we note that several other cases also support the premise that there can be no recovery if children of a similar age and experience as the plaintiff are capable of understanding the danger involved. See, e.g., Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 98, 482 N.E.2d 1061, 1066; Sydenstricker v. Chicago & Northwestern Ry. Co. (1969), 107 Ill. App. 2d 427, 433, 247 N.E.2d 15, 18.\nIn light of the above-cited authority, the basis of the confusion attending the framing of the issues instruction in this case is readily apparent. Our supreme court in Corcoran has stated that a duty exists whenever there is a defendant\u2019s knowledge that children trespass on his land, combined with a dangerous condition on that land, \u201cdangerous condition\u201d being defined in terms of all children, wrho, as a general class, are old enough to be playing there unattended. However, that same court has stated that Illinois law is in harmony with section 339, which has consistently been interpreted as precluding recovery by a plaintiff of an age and experience to have personally appreciated the risk involved, or who in fact did appreciate it. We further observe that section 339 itself has always contained a separate proposition focusing solely on the children\u2019s failure to appreciate the risk because of their youth, as distinct from either notice to the defendant of trespassing children or the dangerousness of the condition. (Restatement of Torts \u00a7339 (1934); Restatement (Second) of Torts \u00a7339 (1965).) While prior to the adoption of comparative negligence, the third proposition of IPI Civil 2d No. 120.04 served a somewhat similar purpose in focusing the jury\u2019s attention on the minor\u2019s perception of the danger confronting him, albeit in a contributory fault context, it also functioned to preclude recovery absolutely, as would absence of duty or recovery otherwise precluded by the child\u2019s presumed or actual appreciation of the risk. The third proposition of court\u2019s instruction No. 1 was intended by the trial judge to provide for a focused consideration of the child\u2019s appreciation of the risk in a manner similar to that provided by clause (c) of section 339. In light of the above authority, we cannot find that his decision to replace the third proposition of IPI Civil 2d No. 120.04 with an \u201cappreciation of risk\u201d clause was error.\nWe do believe, however, that the trial court should not have framed the third proposition in terms of the \u201ccondition on [the railroad\u2019s] premises\u201d being likely to cause injury, rather than focusing directly on the child\u2019s appreciation of the risk. As Cocoran holds, the \u201cdangerousness\u201d of the condition, as such, is to be determined by reference to the class of children, generally, who by reason of their immaturity would be unable to appreciate the risk. (But see Trobiani v. Racienda (1968), 95 Ill. App. 2d 228, 233, 238 N.E.2d 177, 179 (which approached the element of the child\u2019s appreciation of the risk in a manner similar to that of the trial court in this case, holding that to impose liability under Kahn, the plaintiff must show, inter alia, that there is a defective structure or dangerous agency on the land, and that such \u201cstructure or agency is likely to cause injury because of the child\u2019s inability to appreciate the risk.\u201d (Emphasis added)).) Nonetheless, we do not find that this mistake in language could have prejudiced plaintiff, where the railroad\u2019s attorney expressly conceded that the train was a dangerous instrumentality and where the lengthy and highly credible testimony of the railroad\u2019s witnesses overwhelmingly established that the railroad viewed the condition on its property as very dangerous and a threat to the safety of children in general.\nOur one other reservation regarding the language of the court\u2019s instruction is its use of the term \u201cmental capacity,\u201d in addition to \u201cage\u201d and \u201cexperience.\u201d In a recent case involving an eight-year-old mentally handicapped child injured on a park slide, this court held that the landowner\u2019s duty would be based on an inability of children of a similar age and experience to appreciate the risk, not on the handicapped child\u2019s more limited ability to do so. Otherwise, an undue burden would be placed on landowners, who would be required to focus on a minor\u2019s subjective inability to appreciate the risk. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 61, 545 N.E.2d 184, 187.) In other words, although it is proper to consider the minor\u2019s actual knowledge where the child has some greater understanding than a typical child of his age (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 840, 546 N.E.2d 77, 82; Swearingen v. Korfist (1989), 181 Ill. App. 3d 357, 362-63, 537 N.E.2d 365, 368), defendants are not expected to foresee the unique mental and physical limitations of a particular minor in terms of ability to appreciate the risk. However, we also consider any slight misstatement of law in this choice of language to be nonprejudicial under the facts of the instant case. The evidence established that the class of children similar to Daniel Colls in age and experience would generally correspond to those similar to him in age, mental capacity, and experience. Furthermore, if testimony that Daniel had repeated one grade in school was in fact considered by the jury in determining defendants\u2019 liability, it could only have weighed as a factor in plaintiff\u2019s favor. Therefore, any error in framing the precise language of the third proposition must be deemed harmless.\nNor do we find that the trial court erred in giving both court\u2019s instruction No. 1 and the comparative negligence instructions, including the definition of a minor\u2019s standard of ordinary care, i.e., \u201cthat degree of care which a reasonably careful child of the age, mental capacity, and experience of the decedent would use\u201d under similar circumstances (IPI Civil 2d No. 10.05 (1981)). First, we do not believe that the average juror would be confused as to the meaning and function of the \u201cappreciation of risk\u201d and the contributory negligence instructions, despite some shared language. The third proposition in the court\u2019s burden of proof instruction is concerned with whether there is a reasonably foreseeable risk of harm to children such as plaintiff\u2019s decedent because children of his age and experience are unable to appreciate the risk, i.e., cannot be presumed to understand and fully appreciate the dangers on the premises. The contributory negligence instruction, on the other hand, focuses directly on Daniel Colls and his actions prior to and at the time he encountered a fast-moving train on the railroad\u2019s bridge at Kedzie Avenue on August 19, 1978. It essentially asks whether Daniel Colls was as careful as one could reasonably expect someone of his age, mental capacity, and experience to be under those particular circumstances, or whether his own recklessness or inattention in encountering the dangerous condition on the railroad\u2019s right-of-way was partially to blame for the specific injuries which he sustained. In other words, it gives the jury the opportunity to determine the extent to which he personally, as well as one or both defendants, may have been at fault. To that extent, even if he or children like him could not be expected to fully appreciate the risk involved, and plaintiff had proved all of the other propositions in the burden of proof instruction, his recovery would be reduced.\nMoreover, the jury instructions, when viewed as a set, convey the clear impression that the jurors were to find the defendants liable for any amount of damages if, and only if, plaintiff proved each of the separate propositions in court\u2019s instruction No. 1. Furthermore, they expressly state that the total amount of damages to which plaintiff would \u201cotherwise be entitled\u201d was to be reduced in proportion to the amount of contributory negligence, i.e., the degree to which Daniel Colls, before and at the time of the occurrence, failed to use ordinary care for his own safety. Thus, the distinction between a typical 12-year-old child\u2019s inability to appreciate the hazards of the defendants\u2019 premises, and the failure of decedent to exercise ordinary care for his own safety under the circumstances, should have been sufficiently clear to the jurors.\nFinally, there is substantial precedent favoring the jurors' separate consideration of these issues, under separate instructions. For example, the supreme court of Oregon, discussing the role of contributory negligence instructions in a child trespassing case, stated as follows:\n\u201cThere is, therefore, no disharmony in permitting the jury to find first that defendant was negligent as determined by [the Restatement of Torts section 339] tests ***, and yet find that the particular child injured had, because of his own fault, forfeited his right to recover. ***\n* * *\nThere is ample authority for the position we have taken. In 2 Harper and James, \u00a727.5 *** it is said:\n* * *\n\u2018The question of the child\u2019s contributory negligence is a separate problem which must be carefully distinguished from that of the land occupier\u2019s duty ***. Unfortunately the issues are often confused. See note 54, supra. Where contributory negligence bars recovery anyway, the confusion does not affect the result. But in cases in which the plaintiff may not be contributorily negligent, it would be important to keep the issues distinct.\u2019 \u201d Pocholec v. Giustina (1960), 224 Or. 245, 254-55, 355 P.2d 1104, 1108-09, quoting 2 F. Harper & F. James, Torts \u00a727.5, n. 57, at 1455 (1956).\nFurthermore, a relatively recent case from this district of the Illinois Appellate Court supports the premise that the comparative negligence instruction performs a separate and distinct role from an appreciation of risk determination by the jury, and that the defendant\u2019s liability, and the child\u2019s presumed inability to appreciate the risk, are not dispositive of the jury\u2019s finding relating to contributory fault. In La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417, IPI Civil 2d No. 120.04, was not tendered by either party, was not used, and was not at issue on appeal. However, we find instructive the court\u2019s approach to the issue of whether a jury finding of some contributory negligence on the child\u2019s part also established, by implication, that he must have appreciated the risk. The court reasoned as follows:\n\u201cCity next contends that plaintiff\u2019s appreciation of the danger associated with \u2018flipping\u2019 moving railroad trains precludes the application of Kahn. A prerequisite for the imposition of liability under Kahn is that the minor plaintiff be found to be \u2018incapable of appreciating the risk involved\u2019 by reason of his immaturity. [Citation.] City cites Sydenstricker v. Chicago & Northwestern Ry. Co. [citation], for the proposition that where a child is capable of appreciating the risk involved in a particular activity, the application of Kahn is inappropriate. According to defendant the jury\u2019s finding that plaintiff was 18% at fault \u2018conclusively determined that plaintiff was able to and did, in fact, appreciate the risk involved in attempting to jump on a moving freight train.\u2019\nPlaintiff responds that in Alvis v. Ribar [citation], our supreme court adopted the \u2018pure\u2019 form of comparative negligence and specifically rejected the previous Illinois law which held that any degree of contributory negligence by the plaintiff should bar his recovery. Here, the jury made no specific finding that plaintiff \u2018appreciated the risk\u2019 in jumping on a moving freight train. It merely found that plaintiff was 18% at fault. We cannot conclude from such verdict that \u2018plaintiff actually appreciated the danger of flipping railroad cars\u2019 within the context of Kahn and Sydenstricker.\u201d (First emphasis added; other emphasis in original.) La Salle, 132 Ill. App. 3d at 615, 478 N.E.2d at 422.\nOur research has also revealed one case where the \u201crecord relating to plaintiff\u2019s age, mental capacity, intelligence and experience\u201d was found to raise \u201ca material question as to whether plaintiff was capable of appreciating the risk,\u201d so as to require the issue of his contributory negligence to be submitted to the jury. (See Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill. App. 3d 1091, 1093, 415 N.E.2d 615, 617.) Of course, Pellegrini was decided before the adoption of comparative negligence, and any overlap between the two concepts in the juror\u2019s minds would have have been inconsequential. The result in either case would have been preclusion of any recovery by the plaintiff. Finally, we note that a recent Illinois decision, concerning a negligence suit brought by a 15-year-old injured on defendant\u2019s premises, held that failure to give the same comparative negligence instructions as were given here, when some evidence supporting an inference of the child\u2019s contributory negligence was before the jury, was reversible error. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1990), 202 Ill. App. 3d 817, 824-25, 560 N.E.2d 467, 472.) For all of these reasons, we find that the burden of proof and comparative negligence instructions, as independently considered by the jurors, accurately stated the applicable law without causing confusion or placing undue emphasis on any particular matter.\nIn summary, we find that the trial judge used sound discretion in dealing with a challenging set of issues related to plaintiff\u2019s burden of proof. First, it was beyond dispute that IPI Civil 2d No. 120.04 could not be given in its official, unmodified form, and that a revised version of the instruction had not been published. Thus, modification of IPI Civil 2d No. 120.04 was justified. Secondly, the instruction tendered by defendant railroad, while premised on a valid legal principle, that there can be no liability to a minor who, in fact, appreciated the risk, was also inappropriate. The railroad\u2019s instruction contained a third proposition framed in terms of Daniel Colls\u2019 appreciation of foreseeability, i.e., his appreciation that the train involved a \u201creasonably foreseeable risk of harm\u201d to him. Thus, the instruction was properly refused as a misstatement of law. Furthermore, plaintiff\u2019s instruction, while eliminating the contributory negligence element from IPI Civil 2d No. 120.04, raised some concern that no language focusing the jury\u2019s attention squarely on the minor\u2019s appreciation of risk would appear in the instruction. In light of the substantial authority discussed herein, we believe that this concern was legitimate and was appropriately addressed by court\u2019s instruction No. 1.\nIn any event, it is apparent from the variety and nuances of language used by Illinois and other courts in construing the applicable law that the trial judge in the case at bar was presented with no clear-cut guide to framing the perfect set of jury instructions. The question before us is not whether plaintiff\u2019s solution, or any other, might have been an equally acceptable alternative to that devised by the court. The issue is whether the burden of proof and comparative negligence instructions, read in sequence, were a fair and accurate statement of the law, sufficiently clear so as not to confuse or mislead the jurors. We believe that this standard was met, without prejudice to plaintiff\u2019s case. We therefore find no error.\nPlaintiff next objects to the trial court\u2019s handling of discovery violations by the railroad. Plaintiff contends that the trial judge abused his discretion and committed reversible error by denying her motion for a mistrial following the late disclosure of police incident reports during Inspector Hahne\u2019s testimony. She further claims that the court erred in permitting Hahne to give further testimony regarding police activities in the immediate area of the accident, after the reports themselves had been barred. Plaintiff argues that the court\u2019s sanction, which was to exclude the reports from evidence and from any use at trial, was totally inadequate under the circumstances. She claims that the nondisclosure of these documents deprived her of critical information concerning the railroad\u2019s knowledge and its response to complaints about children on its right-of-way. It is plaintiff\u2019s view that only the granting of a mistrial could have overcome the prejudice to her case which resulted from not having an opportunity to examine and investigate these reports, and to take them into consideration in developing a trial strategy.\nSupreme Court Rule 219 vests the trial judge with great power in authorizing the court to enter \u201csuch orders as are just\u201d if a party fails to comply with discovery procedures. (107 Ill. 2d R. 219(c).) It is well settled that the decision to employ sanctions, and what sanctions to use, are matters within the broad discretion of the trial court, and that absent a clear abuse of discretion, a reviewing court wall uphold the trial court\u2019s decision. (Ashford v. Ziemann (1984), 99 Ill. 2d 353, 459 N.E.2d 940; Harris v. Harris (1990), 196 Ill. App. 3d 815, 555 N.E.2d 10; In re Henry (1988), 175 Ill. App. 3d 778, 530 N.E.2d 571; King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 513 N.E.2d 958; Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232; Ferenbach v. DeSyllas (1977), 45 Ill. App. 3d 599, 359 N.E.2d 1214.) As this court has stated, our role is not to second-guess the trial court\u2019s decision; our sole function on appeal is to determine whether the trial judge abused his discretion. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 906, 469 N.E.2d 708, 718.) Under the particular facts and circumstances of the case at bar, we cannot say that such an abuse was apparent.\nThere is no question that the trial court was justified in imposing sanctions on the railroad for its nondisclosure of 30 relevant incident reports from the 3V2-year period prior to August 19, 1978. The documents at issue were well within the scope of plaintiff\u2019s interrogatories, and also within the scope of plaintiff\u2019s request to produce, both filed eight years before the trial commenced. There is nothing in the record to indicate that these documents were not as readily accessible to defendant railroad during the pretrial period as the one report which was immediately disclosed. Once a court finds that there has been a refusal to comply with the discovery rules, the burden is on the noncomplying party to show that the refusal was reasonable. (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 587, 434 N.E.2d 511, 518.) One standard utilized by the courts in determining whether a party\u2019s conduct is unreasonable is whether \u201cthe conduct of the offending party seems to have been characterized by a deliberate and pronounced disregard for the rule or order not complied with.\u201d (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 911, 513 N.E.2d 958, 966.) Counsel for the railroad conceded, and the trial court found, that his unconvincing and uncorroborated explanation for tendering one incident report without the others, whatever its merit, did not meet his burden of showing reasonable noncompliance. We agree. Thus, the question is whether the trial court abused its discretion in excluding the documents from evidence and from any use at trial, rather than granting plaintiff\u2019s motion for a mistrial.\nInitially, we must address plaintiff\u2019s contention that once the court had barred the reports themselves, it should not have permitted Hahne to testify about the high priority of the area for police patrols and the diligence of the railroad police in surveillance and response to suspect activity, because the witness had the opportunity to refresh his recollection with these reports prior to trial, even if no reference to their content was permitted during the proceedings. Under Supreme Court Rule 219(c), such sanctions as are \u201cjust,\u201d may, under appropriate circumstances, include barring a witness from giving testimony which is reasonably related to the discovery violation. (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 587-88, 434 N.E.2d 511, 519.) However, under the facts of this case, we find that the court exercised sound discretion in permitting Hahne\u2019s general testimony on these matters after excluding the documents themselves. First, the trial judge correctly noted that it would have been impossible to prevent the witness, who had personally received, prepared, or signed at least four of the undisclosed reports, in addition to the disclosed document admitted as plaintiff\u2019s exhibit No. 21, from refreshing his recollection from his own files at any point in the past, although he was not allowed to do so at trial. Furthermore, all of Hahne\u2019s testimony was based on his 17 years of progressively responsible service with the C & NW police force, beginning with patrol duties in 1971 and including more than 10 years as police inspector. It was apparent from both his experience and his testimony that he was thoroughly familiar with the entire area around Kedzie, Belmont and the Avondale Yard during the relevant time period, with typical police encounters there, and with the full range of police procedures discussed. Thus, in all probability, his testimony would have been substantially the same had he never reviewed the excluded documents. Finally, although plaintiff\u2019s counsel argued this point in chambers, the railroad is correct in stating that he at no time moved to exclude Hahne\u2019s testimony. Nor did plaintiff\u2019s post-trial motion, which charged reversible error in the denial of a mistrial, suggest that the court erred by not excluding Hahne or some portion of his testimony. Consequently, this particular aspect of plaintiff\u2019s claim of error may considered waived. In any event, we find it meritless under the circumstances.\nWe turn then to the issue of whether the court erred in denying plaintiff\u2019s motion for a mistrial. It is well established that a decision whether or not to grant a mistrial rests within the sound discretion of the trial court based upon the particular circumstances of the case. (Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 913, 410 N.E.2d 249, 251.) As a general rule, a mistrial should be declared only as the result of some occurrence at trial of such character and magnitude that a party is thereby deprived of a fair trial. (Benuska, 87 Ill. App. 3d at 913, 410 N.E.2d at 251; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 359, 366 N.E.2d 327, 338.) The trial court\u2019s ruling on a motion for mistrial will not be disturbed on review absent a clear abuse of discretion. Benuska, 87 Ill. App. 3d at 913, 410 N.E.2d at 251; Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 210, 398 N.E.2d 188, 195.\nWe have examined the 30 incident reports excluded from evidence after being disclosed for the first time during the presentation of defendants\u2019 case. All relate to incidents in the immediate vicinity of the accident, whether in the Avondale Yard, on the tracks near the yard, or on the tracks at Kedzie, Belmont, or Kimball Avenues. Most involve sightings of children or teenagers on railroad property, although a few pertain solely to adult trespassers. The earliest report is dated January 23, 1975, and the latest, June 2\u00d3, 1978. The reports convincingly corroborate Hahne\u2019s statement that the railroad had a continual problem with trespassing in the area, from one year to the next. They also provide overwhelming evidence of notice and knowledge on the railroad\u2019s part, for more than three years prior to Daniel Colls\u2019 death, that youngsters of his age and younger were going up onto the elevated tracks. For example, the reports reveal that, in April 1975, two boys, 9 and 11 years old, were confronted on the tracks at Kedzie Avenue, warned and released; in September 1976, two eight-year-old boys, found \u201cplaying on the bridge over Belmont Ave[nue],\u201d were \u201calmost struck by a northwest bound train,\u201d and were taken home to their parents by railroad police; in March 1977, a 10-year-old and an 11-year-old boy were found playing on the tracks and warned, as were three others, one of them 13 years old, one day later; in April 1978, passing trains reported \u201cjuveniles on the tracks,\u201d who had fled by the time that police arrived; and in May 1978, a juvenile was apprehended on the bridge at Kimball Avenue, but \u201cgot away.\u201d\nIn addition to the police incident reports, the stack of documents offered into evidence by the railroad included copies of 28 letters sent to the parents of the juveniles listed on those reports. During the period covered by the documents, four of the letters had been sent to parents in the 3300 block of North Troy, where the Colls resided, and two more were sent to parents in the adjacent block. During the same period, six letters were sent to parents on North Albany, all. of them residing within two blocks of the Quinn and Walsh families. Letters were also set to five sets of parents in the 3300 block of North Kedzie, where John Spaw resided.\nOf course, notice to the railroad of trespassing children was not in dispute by the time this case went to the jury, notice and knowledge having already been established by the testimony of the railroad\u2019s own witness and conceded by its counsel. What plaintiff objects to is lack of access to these documents in formulating a trial strategy which she could pursue with confidence. For example, she argues that had she received the incident reports during the discovery phase, she might not have expended so much time and effort in establishing through neighborhood witnesses that the railroad had notice of the children and that it failed to respond to citizen complaints. Plaintiff\u2019s argument is well taken. The existence of these additional reports, embraced by interrogatories which the railroad answered under oath, as well as by plaintiff\u2019s request to produce, demonstrate C & NW\u2019s failure to comply with the requirements of full and frank disclosure imposed by our discovery rules. Illinois courts have held that fractional discovery and fractional disclosure are not to be tolerated. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 68, 374 N.E.2d 460, 468; Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 905, 469 N.E.2d 708, 718.) Such partial disclosure, implying that there is no further information or evidence to be sought, \u201cinevitably tend[s] to mislead opposing counsel into the belief that further inquiry is not needed.\u201d Osten dorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282, 433 N.E.2d 253, 257.\nMoreover, because discovery is supposed to enable counsel to decide in advance of trial not only what the evidence is likely to be, but also what legal issues can credibly be argued, our supreme court has condemned conduct which frustrates a plaintiff\u2019s attempts to formulate a theory of the case and a strategy for trial. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 213, 473 N.E.2d 955, 961.) Here, C & NW may have purposely secreted evidence, the full import of which could have been investigated and addressed by plaintiff\u2019s counsel over the eight-year period between the discovery requests and the trial. We cannot fault plaintiff for any lack of diligence, as there was nothing in defendant\u2019s answers which would have suggested that similar highly relevant reports were also available. Furthermore, although the trial judge observed that purposeful withholding of the reports during discovery seemed inconsistent with the railroad\u2019s attempt to introduce the same evidence at trial, it is not inconceivable that, despite the risk of severe sanctions, a party\u2019s trial strategy might involve the surprise introduction of previously undisclosed documents in order to rebut the opposing party\u2019s theory of the case, having already precluded the opposing party from utilizing the same evidence in support of other viable arguments which could have been made. We therefore reiterate that such fractional and misleading disclosure violates the spirit and intent of the discovery process, should not be countenanced by the courts, and warrants the imposition of appropriately severe sanctions.\nIn the case at bar, plaintiff argues that the trial court\u2019s sanctions were insufficient to overcome the prejudice caused by the railroad\u2019s nondisclosure and the jury\u2019s brief observation of the stack of reports as they were handed to defense counsel. Defendant railroad maintains that the court\u2019s action in barring the reports from the courtroom, as well as any further reference to them or their content, not only deprived it of important evidence of police diligence, but also provided plaintiff -with an important tactical advantage which it fully exploited. After asking Hahne to confirm that an incident report would have been prepared each time that an officer responded to a complaint, plaintiff\u2019s counsel suggested to the jury during closing argument that, despite Hahne\u2019s testimony to the contrary, the only report which the jury had seen was plaintiff\u2019s exhibit No. 21, which reflected the railroad\u2019s sole effort to respond to the complaints of neighbors and its own train crews. Thus, the exclusion provided plaintiff with an additional means of attacking the railroad\u2019s, and Hahne\u2019s, credibility.\nOur discovery procedures are meaningless unless courts unhesitatingly impose sanctions proportionate to the circumstances (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, 374 N.E.2d 460, 467), and a trial court, in exercising its discretion, may appropriately consider the need for using sanctions as \u201ca general deterrent which will provide a strong incentive for all litigants to fully and accurately comply with the discovery rules.\u201d (Emphasis in original.) (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 588, 434 N.E.2d 511, 519.) Nonetheless, each case involving discovery sanctions presents a unique factual situation which must be considered in decid ing which sanctions, if any, are \u201cjust\u201d under the circumstances. We find that, under the particular circumstances of the instant case, the sanction imposed did not constitute a clear abuse of the court\u2019s discretion for several reasons. First, it was plaintiff who initially moved for exclusion of the documents, voicing a concern that some of them referred to the Avondale Yard and other areas, and should not be introduced to prove police diligence at the site of the accident. Thus, the court\u2019s sanctions were a direct response to plaintiff\u2019s own motion to have the reports barred. Furthermore, the judge\u2019s decision prevented the railroad from presenting some highly credible and material evidence in its own defense, while permitting plaintiff to attack the railroad\u2019s credibility. Finally, while we agree with plaintiff that she should have been able to investigate the reports and consider their full import in developing a trial strategy, we are not convinced that their nondisclosure and attempted introduction amounted to an occurrence that deprived plaintiff of a fair trial. If the jury had received these documents, or had heard testimony based on their content, reasonable jurors would have found considerable support in them for the railroad\u2019s claim that it was diligent in acting to protect the children in Daniel Colls\u2019 neighborhood from any dangerous conditions on its property. The jurors may also have concluded that any child who lived in the area must have, appreciated the risks associated with being on the C & NW tracks, or that, in any case, neither warning signs nor a fence would have further deterred them. Of course, it is also conceivable that the jury may have inferred that the railroad should have attempted to do more, or should, have tried other means of deterrence. However, regardless of how plaintiff may have utilized these documents in planning her trial strategy, the jury could not have found the railroad negligent for any act or omission without first finding that the plaintiff had established every element of her burden of proof, including Daniel Colls\u2019 presumptive or actual inability to appreciate the risk of being on the tracks and on the bridge. The general content of the police incident reports and the letters, if used at a new trial, would have made such a finding even more unlikely than it was under the facts in evidence at this proceeding. The trial judge, being in the best position to weigh the appropriateness of the sanctions available, chose to grant plaintiff\u2019s motion to exclude and to deny her motion for a mistrial. Giving that decision due deference, we cannot conclude that it constituted a clear abuse of discretion. Accordingly, it will not be disturbed.\nPlaintiff next contends that the trial court erred by striking certain allegations in her complaint, and by limiting the issues instruction to only three claims of wrongful conduct: the railroad\u2019s failure to erect a fence and to post warning signs, and the city\u2019s failure to fence off its property. Initially, we consider the city\u2019s argument that plaintiff has waived any right to appellate review of the court\u2019s decision to strike certain subparagraphs of the complaint, relating to the city, because she failed to object at appropriate times during the trial proceedings and to voice any legal basis for her objections. Our review of the record, including the jury instructions conference, the post-trial motion and hearing, other conferences during the trial, and written memoranda of both parties, indicates that the plaintiff adequately stated her objections at the appropriate times, sufficiently apprised the trial judge of the legal grounds for her objections, and afforded him several opportunities to consider and reconsider these objections in light of the relevant case law. Therefore, plaintiff has not waived these objections on appeal, and we will address their merits.\nPlaintiff argues that the trial court should not have stricken her allegations that the railroad failed to maintain \u201cany guards or suitable personnel\u201d to prevent children from playing on the tracks, .and that the railroad failed to maintain the tracks so as to clear them of any debris or objects which would attract children. She further maintains that she was deprived of an opportunity to have the jury consider whether the city might have been negligent in not posting warning signs or clearing its property of wood and other debris which made the railroad tracks more attractive and the area more hazardous to children. In other words, she claims that the court\u2019s rulings improperly deprived her of the opportunity to demonstrate that there were other appropriate responses which defendants could have undertaken to remedy the dangerous conditions on the premises.\nWhile it is well established that each party is entitled to have the jury instructed on matters reasonably raised by the evidence (Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 409, 250 N.E.2d 537, 546; Chambers v. Rush-Presbyterian-St. Luke\u2019s Medical Center (1987), 155 Ill. App. 3d 458, 467, 508 N.E.2d 426, 432), the question as to what issues have been raised by the evidence is within the discretion of the trial court (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 389-90, 502 N.E.2d 826, 838). Under the Kahn doctrine, the attractiveness of the condition on the premises no longer forms a basis for the defendant\u2019s liability to the child; however, where plaintiff can establish all the elements of the exception, \u201cthere 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.\u201d (Emphasis added.) (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836, 842.) Appropriate ways of remedying the situation or protecting the children may, of course, extend beyond fencing and posting warnings.\nWith these principles in mind, we turn to the specific allegations which were stricken and excluded from the issues instruction. We consider first plaintiff\u2019s allegation that the railroad \u201cfailed to maintain any guards or other suitable personnel\u201d to prevent the children from playing on the tracks. It is our view that this allegation was properly stricken, as the evidence clearly established that the railroad maintained police officers who patrolled the area and attempted to prevent children from playing on the tracks. Although plaintiff\u2019s tendered issues instruction did rephrase this allegation as a failure to maintain \u201cadequate security guarding and personnel,\u201d we feel that the court was within its discretion in framing an instruction which excluded it. We also note that plaintiff presented no evidence whatsoever to support a finding that the expense or inconvenience of posting a permanent guard at the Irene track segment would be slight in comparison to the risk to children.\nWith respect to the railroad\u2019s failure to maintain the tracks \u201cin such manner to keep [them] free from objects which would attract children\u201d to them, we also find no abuse of the court\u2019s discretion. Because a landowner does not have a duty to remove attractions from its property in order to guarantee the safety of potential child trespassers, this allegation reasonably could have been interpreted by the court as a misapplication of the law relevant to the case. We note, however, that clearing spikes from the tracks in heavily populated residential areas might properly be considered an appropriate means to remedy a dangerous condition, if the facts in evidence in a particular case supported that inference, which they did here. Therefore, while we find no error in the court\u2019s decision to eliminate the particular wording used from both the complaint and the issues instruction, we do not hold that the court was bound by the applicable law to prevent jury consideration of the railroad\u2019s maintenance of its property so as to remove a risk to children.\nLikewise, we find no abuse of discretion with regard to the court\u2019s decision to strike the allegations charging the city with failure to \u201ckeep its property free from such objects as would attract children to the *** railroad tracks.\u201d Also, while there was ample testimony regarding the wood and other debris left on the city\u2019s property and occasionally used by the children at play, any failure to properly maintain the area was an unlikely proximate cause of decedent\u2019s accident.\nWe do find merit in plaintiff\u2019s argument that if the city had a duty to fence, it also had a duty to warn. The trial judge, in framing the issues instruction, expressly stated that the only reason the city remained in the case, and the only reason that the question of the city\u2019s liability was being presented to the jury, was that, based on Blinois case law, the city might have a duty to fence its property under the circumstances. The city had consistently maintained that it had no duty at all under the Kahn doctrine, either to erect a fence or to employ any other measures to protect children from a dangerous condition on another landowner\u2019s property. The city\u2019s duty, if any, under the facts of this case, is predicated on two Blinois decisions, both of which involved children injured on railroad tracks adjacent to city property after crossing onto the right-of-way through a hole in a fence which the city had constructed and maintained. In La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417, the city had a contractual obligation to the railroad to maintain the fence in good repair, which the evidence clearly established it had failed to do. In Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729, the city had undertaken to construct and maintain a fence around an entire park and playground area which it operated. On one side, the park abutted railroad tracks, with the fence separating them from the city property. Evidence produced at trial established that the Chicago Park District was aware of the hole, considered the unrepaired fence a safety hazard, and knew that children used it to access the tracks. Despite work orders, the hole in the fence was never repaired. This court upheld a jury verdict against the city and in favor of the 12-year-old plaintiff, who climbed through the hole and, having watched railroad employees and others do so safely, was injured when he jumped down from a slow-moving train. The court cited the La Salle case as support for the city\u2019s duty to repair the park fence in order to prevent children\u2019s access to the trains.\nBoth LaSalle and Engel could arguably be distinguished from the instant case, the former because the city had a contractual obligation to fence, and the latter because it had a common law duty to repair the fence it had voluntarily undertaken to build. Nevertheless, if we conclude as did the trial court, that the city in this case could have a common law duty under the Kahn doctrine to protect children against unreasonably dangerous conditions on the railroad\u2019s adjacent property, then we fail to see why that duty would be limited solely to fencing, simply because La Salle and Engel focused on that method of alleviating a hazard. In Leone v. City of Utica (1979), 66 A.D.2d 463, 414 N.Y.S.2d 412, aff\u2019d (1980), 49 N.Y.2d 811, 403 N.E.2d 964, 426 N.Y.S.2d 980, a case cited in LaSalle as authority for the city\u2019s duty to fence, although Leone was directly predicated upon well-settled New York law that \u201ca city owes to those who use its parks a duty of ordinary care against foreseeable danger,\u201d rather than the section 339 or Kahn exception, the court stated:\n\u201cThe record sufficiently establishes that young children often played in the wooded area of the park west of the creek and it may fairly be inferred that the city was aware of that activity and made no effort to prevent it. Additionally, the city had knowledge of the location of the railroad tracks and that pathways in the park lead to those tracks. Certainly the jury may have found, in view of the foreseeable danger of serious injury presented by the location of the railroad tracks [citation], that the failure of the city to fence its playground or park, or to supervise the use of the park or to take some other reasonable precaution to prevent or discourage children from going onto the railroad property, constituted a lack of ordinary care [citations].\u201d (Leone, 66 A.D.2d at 466-67, 414 N.Y.2d at 415, quoted in La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 614, 478 N.E.2d 417, 421-22.)\nWe see no reason why posting warning signs would constitute such a \u201creasonable precaution\u201d any less than building a fence.\nWhile every decision made by the trial judge may not have been perfect with respect to the issues instruction, none did any substantial harm to plaintiff under all the facts. In order to have found defendants liable for any act or omission, the jury would have had to first find that plaintiff had proved every element contained in the burden of proof instruction, including the proposition relating to appreciation of the risk. Considering Daniel\u2019s age, the testimony about the speed of the commuter trains and the impact of passing trains on the environment, this was a substantial burden for plaintiff to meet. In fact, while the trial judge correctly determined that the case had to be submitted to the jury under all the evidence, he stated to counsel that he would have found for the defendants on the basis of the appreciation factor. In the final analysis, the jury had the opportunity to consider the issue of the railroad\u2019s liability in terms of both failure to fence and failure to warn. It is highly unlikely that a jury would have found the railroad to have exercised due care in posting no warning signs on its own tracks and bridge, while finding the city negligent for not posting signs on the adjoining property. For these reasons, we find that any mistakes made in striking allegations or framing the issues instruction did no substantial harm to plaintiff and do not constitute reversible error under the facts of this case.\nPlaintiff\u2019s final contention is that the trial court committed reversible error by permitting the railroad\u2019s continual characterization of decedent and other children as \u201ctrespassers.\u201d She points particularly to defense counsel\u2019s repeated references, during his opening argument, to trespassers and to the manner in which the railroad dealt with such individuals, and to police inspector Hahne\u2019s testimony, informing the jury of the illegality of trespassing on railroad property and the possibility of arrest and prosecution. Plaintiff correctly observes that the application of the Kahn doctrine does not depend on the injured child\u2019s status as a trespasser. In fact, the Illinois Supreme Court has expressly held that, since Kahn, \u201cthe common law categories of trespasser, licensee and invitee, as they pertain to an injured child\u2019s status, are no longer relevant in determining liability.\u201d (Cope v. Doe (1984), 102 Ill. 2d 278, 285-86, 464 N.E.2d 1023, 1027.) For this reason, the Kahn doctrine may be invoked when the injured child was invited onto the premises as well as when he ventured there without permission. (See, e.g., Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846 (child visitor injured in defendant\u2019s home); Friedman v. Park District (1986), 151 Ill. App. 3d 374, 502 N.E.2d 826 (child injured while sledding in municipal park).) Plaintiff further maintains that use of the term \u201ctrespass\u201d in the context of testimony about police surveillance, theft from boxcars, illegality, and the possibility of arrest strongly implied decedent\u2019s wrongdoing and misconduct, leaving \u201cthe unmistakable impression in the minds of the jury that Daniel Colls was a trespasser to whom the defendants owed no duty.\u201d She argues that the very essence of the term \u201ctrespasser\u201d connotes criminality, and implies a status under which an individual has little, if any, legal recourse. Finally, she notes that, although \u201cwilful\u201d trespass on an elevated railroad track was a punishable offense in August 1978, under a Chicago ordinance (Chicago Municipal Code \u00a7193 \u2014 19 (1935), decedent was less than 13 years old at the time and had not yet reached the statutory age of criminal responsibility. (Ill. Rev. Stat. 1977, ch. 38, par. 6\u20141.) Thus, plaintiff asserts that the implication that he was engaging in a criminal act was both misleading and severely prejudicial.\nHaving reviewed all of the evidence, we do not find plaintiff\u2019s argument persuasive. We agree that it is \u201cthe province and duty of the [cjourts to see that every litigant has a fair trial, free from the prejudicial conduct of counsel who in argument undertakes to supply facts or inferences favorable to his or her client that are not based upon the evidence in the record.\u201d (Schofield v. Crandall, Inc. (1974), 24 Ill. App. 3d 101, 106, 319 N.E.2d 585, 588.) However, the record in this case clearly establishes that the conduct of counsel for the railroad, i.e., his use of the terms \u201ctrespass\u201d and \u201ctrespasser,\u201d was both supported by the evidence and nonprejudicial in its overall effect.\nInitially, we observe that there is no question that Daniel Colls was a child trespasser as that legal status is defined by the weight of authority. Black\u2019s Law Dictionary defines \u201ctrespasser\u201d as \u201c[o]ne who intentionally and without consent or privilege enters another\u2019s property.\u201d (Black\u2019s Law Dictionary 1348 (5th ed. 1979).) Illinois courts have defined a trespasser as \u201cone who enters the premises of the other without permission, invitation, or other right, and intrudes for some purpose of his own, or at his convenience, or merely as an idler (Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 87, 343 N.E.2d 261, 264-65), including even those on the premises of another by sufferance without permission or an express or implied invitation (Illinois Central R.R. Co. v. Eicher (1903), 202 Ill. 556, 560, 67 N.E. 376, 378). As the railroad notes, even the Premises Liability Act (Pub. Act 83 \u2014 1398, eff. Sept. 12, 1984), which abolished the common law distinction between invitees and licensees, refers to the \u201ctrespassing child entrant\u201d as a category of trespasser. (Ill. Rev. Stat. 1987, ch. 80, par. 303.) The testimony and other evidence in this case conclusively established the decedent was a child who entered upon C & NW\u2019s property without express or implied permission, invitation, or other right, for some purpose of his own. He was therefore a child trespasser, and neither the comments of defense counsel, nor the questions addressed to witnesses mischaracterized him or the other children as such.\nMoreover, the substantial testimony in this case, as summarized herein, belies plaintiff\u2019s argument that a reasonable jury would have inferred that decedent, or any of his friends, was a juvenile delinquent or criminal as those terms are generally understood by the layperson. In fact, the cumulative effect of the testimony, including that of the railroad\u2019s police inspector, was quite the opposite. The composite picture presented was that of a likeable 12-year-old who attended parochial school, liked to draw, and spent his summer days with neighborhood children, many of them younger than he, engaged in activities such as building tree houses on property less than two blocks from home, after asking his parents\u2019 permission. Not one witness, including Hahne, suggested that Daniel so much as threw a rock, much less vandalized railroad property, stole articles from boxcars, or engaged in any other criminal or delinquent act. We do not believe that the average juror would characterize playfully tampering with a locked railroad switch as meeting that description. We also note that the railroad\u2019s attorney, in posing questions to Hahne, characterized a \u201cchild trespasser\u201d simply as \u201ca youngster up there [on the tracks].\u201d That description, followed by Hahne\u2019s explanation of appropriate and inappropriate ways of dealing with such children, could only have reinforced the idea that the railroad police were primarily involved in warning children against dangers to their own safety and protecting railroad property, not in scouting out child criminals. Furthermore, we find it difficult to imagine that a Cook County jury, drawing upon its own common sense and life experiences, including any knowledge of commuter trains and railroad tracks in residential neighborhoods, would translate comments about occasional incidents of arrest and adult boxcar thieves into a suggestion that Daniel Colls was a lawbreaker who deserved no remedy or recourse.\nFinally, we observe that the trial judge exercised sound discretion in acting to prevent such an inference on the jury\u2019s part. He ruled that the word \u201cCriminal\u201d be deleted from the phrase, \u201cCriminal Trespass to Land,\u201d before copies of plaintiff\u2019s exhibit No. 21, the police incident report, were distributed to the jurors. He refused to admit into evidence a sample letter from the railroad to the parents of a trespassing child, in part because the letter expressly referred to the child as \u201cillegally trespassing on railroad property.\u201d And he declined to give IPI Civil 2d No. 120.01, which defines trespasser as \u201ca person who goes upon the premises of another without permission or invitation\u201d (IPI Civil 2d No. 120.01), correctly finding that the instruction was irrelevant to the law governing the case. (See La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 618, 478 N.E.2d 417, 424; Schranz v. Halley (1983), 114 Ill. App. 3d 159, 162, 448 N.E.2d 601, 602-03.) Under the circumstances, it was plaintiff\u2019s strategy of highlighting the term \u201ctrespasser\u201d during closing argument, as a means of suggesting that the railroad had tried to east Daniel as some sort of \u201cjuvenile delinquent\u201d by using that term, which may have served to refocus the jury\u2019s attention on the negative aspects and possible criminal connotations of decedent\u2019s legal status. In any case, we believe that neither the railroad\u2019s nor plaintiff\u2019s use of the term \u201ctrespasser\u201d could have misled or confused a jury who heard the totality of the evidence and responsibly considered that evidence in light of the instructions. Nor is it likely that any prejudice resulted which affected the verdict. Therefore, we hold that the trial court did not err in permitting use of the term, \u201ctrespasser,\u201d during the course of the trial, and did not abuse its discretion by denying plaintiff\u2019s motion for a mistrial on that ground.\nHaving carefully reviewed the record, we find that the trial court committed no reversible error in the conduct of the trial. Accordingly, we find no reason to disturb the jury\u2019s verdict. The verdict in favor of defendants is affirmed.\nAffirmed.\nLORENZ, P.J., and COCCIA, J., concur.\nWe have been informed that a revision of IPI Civil 2d No. 120.04 is due to be released for publication in the near future. It is likely that the revised pattern instruction may not be entirely consistent with the court\u2019s instruction as given. Nonetheless, under the facts and circumstances of this case, we believe that our holding is amply supported by the weight of authority and is the proper determination under the applicable standard of review.\nJustice Michel A. Coccia participated in oral argument prior to his assignment to another division.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Asher, Pavalon, Gittler & Greenfield, Ltd., of Chicago (Eugene I. Pavalon, Gary K. Laatseh, and Ladonna L. Steiner, of counsel), for appellant.", "Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellees." ], "corrections": "", "head_matter": "NOHEMI COLLS, Adm\u2019r of the Estate of Daniel Colls, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201488\u20142243\nOpinion filed April 19, 1991.\nAsher, Pavalon, Gittler & Greenfield, Ltd., of Chicago (Eugene I. Pavalon, Gary K. Laatseh, and Ladonna L. Steiner, of counsel), for appellant.\nKelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellees." }, "file_name": "0904-01", "first_page_order": 926, "last_page_order": 986 }