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Sherman v. City of Springfield

AUGUST 12, 1969.

WILLIAM F. SHERMAN, A MINOR, BY ROBERT LEE SHERMAN, HIS FATHER AND NEXT FRIEND, AND ROBERT LEE SHERMAN, PLAINTIFFS-APPELLEES,

v.

CITY OF SPRINGFIELD, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding. Judgments affirmed. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 15, 1969.

This appeal is from a judgment entered by the Circuit Court of Sangamon County wherein the minor plaintiff, William F. Sherman, referred to herein as plaintiff, was awarded damages in the amount of $300,000 and plaintiff-father, Robert Lee Sherman, was awarded $19,000 against the defendant.

The cause of action arises from an injury suffered by the plaintiff, 17 years of age, while utilizing the swimming facilities owned and operated by the defendant, City of Springfield. The plaintiff claims that while running and diving in the swimming area, his head came in contact with "something hard" which caused direct and immediate paralysis to his arms, legs and trunk. The father claimed that he was damaged to the extent of all medical and hospital payments made on behalf of the minor.

This is the second trial of the case. The first trial resulted in a verdict for the defendant but was reversed and remanded for a new trial by this Court and can be found reported as Sherman v. City of Springfield, 77 Ill. App.2d 195, 222 N.E.2d 62 (1966). Leave to appeal to the Supreme Court was denied in 35 Ill.2d 632 (1967).

The defendant has operated a recreational swimming area along part of the shoreline of Lake Springfield since the 1930's. In addition to its customary facilities of locker rooms, beach houses, a first-aid room and a snack bar, it also provided a breakwater and an underground chlorination pipe. The pipe and its installation was a unique feature of this swimming area, no similar operation being found at any other like facility. The pipe was originally installed at the time that the swimming area was constructed. It was buried in the sand and gravel of the lake bottom approximately 50 feet from the water's edge and parallel to the shoreline. The pipe was reduced in size, from 8 inches at its origin to 3 inches at its end, with the different sized pipes being connected by reducer fittings. The purpose of the pipe was to introduce into the swimming water a mixture of water and chlorine in order to purify the swimming area on a continuous basis. Half-inch holes were drilled in the pipe at 18-inch intervals to effect this transfer. The fluid in the pipe was maintained under 24-hour pressure and had a daily capacity of 1,400,000 gallons of chlorinated water.

During January and February of 1964 the defendant, through its employees, determined to remove the old chlorination pipe and to install a new one. This removal and replacement was conducted during these months and the project was completed for the opening of the swimming season on June 1, 1964. The employees of the defendant indicated that the replacement of the chlorination pipe was a routine operation done without particular plans or specific engineering. At the time the installation was completed the defendant's employees alleged that there were between eight and twelve inches of sand and gravel over the entire length of the pipe. The approximate depth of water over the pipe was three feet.

On June 26, 1964, the plaintiff went to the defendant's swimming facility with his brother, Bob. After paying the customary admission fee and changing their clothes, both boys went out into the water to swim. The plaintiff swam beyond the bulkhead to dive from the diving tower while his brother, Bob, was swimming in another area. Both boys, after returning to the beach, determined to continue their frolic in the water by running directly from the beach area in front of the bath house into the water until their progress was impeded and then to make a dive allowing their momentum to propel them further out into the lake. As the plaintiff and his brother ran in the water, Bob was somewhat in front of the plaintiff. The plaintiff then claims that he made a running dive in about three feet of water, after first placing his hands and arms in an outstretched position above his head. In this process his head came in contact with "something hard" and he was immediately paralyzed. His brother turned after completing his dive, saw plaintiff in the water and, after determining that he was actually hurt, pulled him from the water to the beach area.

Two lifeguards immediately attended the plaintiff. Neither the lifeguards nor Bob saw any marks on or about the plaintiff's head or body. The chief lifeguard, a young man who had worked five or six summers for the defendant, testified that he examined the lake bottom shortly after the accident, and again at different times thereafter, but was unable to find the pipe exposed or close to the surface of the lake bottom. Other of the defendant's lifeguards, who examined the lake bottom some time after the accident, corroborated this testimony. The defendant's employees testified that the sand bottom was generally soft and mushy.

On the other hand, the plaintiff presented witnesses who testified of incidents subsequent to the date of the plaintiff's injury when they felt the presence of a chlorination pipe at or immediately below the surface of the lake bottom. The plaintiff further submitted two witnesses, Carter Jenkins and Herbert R. Williams, both engineers, who conducted a survey of the lake bottom and the chlorination pipe on August 17, 1964, and August 20, 1964. These two witnesses jointly supervised a survey party and were responsible for the preparation of a topographical map of the area indicating where the chlorination pipe was located. Mr. Williams testified that on the date of the survey, and several days thereafter, when the depth of the sand was checked over the chlorination pipe, the depth varied at one point from 1/8 of an inch to 6 inches. The court, over objection, allowed Mr. Jenkins to testify and express the opinion that the installation of the chlorination pipe had been done incorrectly; that the pressure of the chlorinated water through the pipe, along with the preseason freezing and thawing of the lake bottom and water above, could cause the pipe to vary in depth from time to time in a manner similar to the way a fire hose would whip around although not quite that violently.

The plaintiff introduced medical testimony of three doctors. One, the attending physician, was a general surgeon who testified directly. Another was a neurosurgeon, called by the attending physician, who commenced administering medical attention shortly after the accident in addition to performing surgery thereafter. The third doctor specialized in physical medicine — rehabilitation, and testified through a deposition. The plaintiff, on direct examination of the attending physician, elicited the following testimony:

"MR. J. LONDRIGAN: Q. All right, Doctor, what history did you receive from Bill about what happened?

"A. Well, I am referring to my records of June 26, 1964, while at the Lake Springfield Beach he ran into the water, made a shallow dive, and struck his head abruptly, flexed his neck. He noticed immediate paralysis and was brought from the water by a brother.

"Q. Doctor, assuming that Bill was not unconscious — as a matter of fact he was not unconscious when you saw him, was he?

"A. He was conscious.

"Q. Conscious, yes.

"Assuming that Bill was unconscious at the time of this injury and that his head came through approximately three feet of water before coming in contact with some resistant object, would you expect to find any bleeding or any object of evidence of a head injury?

"MR. NEWKIRK: To which we object. No foundation.

"MR. J. LONDRIGAN: We connected it ____

"THE COURT: The objection is overruled. He may answer.

"THE WITNESS: If the object which he struck had no sharp, irregular surfaces, it might well not produce any external skin injury.

"MR. J. LONDRIGAN: Q. Would you describe just how the injury occurs when the head comes in contact with some resistant object?

"A. Well, in this instance, the force is provided by the momentum of the young man's body with actually diving and carries all of his weight which carries force until the head strikes a resistant or immovable force and forces it into a flexion, resulting in a fracture or spinal cord damage.

"Q. Well, assuming Doctor, that the head came in contact with some soft, mushy, sandy bottom, have you an opinion as to whether it is more probable that it could not occur in that manner than it would be more ...


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