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Mcclure v. Suter

OPINION FILED AUGUST 23, 1978.

GEORGE E. MCCLURE, ADM'R OF THE ESTATE OF MARK E. MCCLURE, DECEASED, PLAINTIFF-APPELLANT,

v.

JESSIE D. SUTER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Ogle County; the Hon. THOMAS HORNSBY, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Plaintiff-administrator, George McClure, brought this suit against defendants, Jessie and Virginia Suter, to recover damages in connection with the death of his son, Mark. The jury rendered a verdict in favor of defendants and plaintiff appeals.

Before considering the merits of this case, we observe that this case is before us for a second time. On the first appeal (Docket No. 75-144, Rule 23 Order filed August 4, 1976) we granted defendants' motion to dismiss the appeal without prejudice, finding that jurisdiction was lacking in this case as there was no evidence that judgment was ever entered on the verdict of the jury. Following that dismissal a written judgment order was entered on the verdict, and following the post-trial motion, plaintiff has taken a timely appeal. We therefore will proceed to the substantive issues of this case.

Defendants owned the Virginia Lake Campground, located midway between Oregon and Byron, Illinois. The campground contained approximately 29 acres and had a small swimming lake at the entrance. An admission charge of $3 per night for a family of four was collected upon entrance to the campground, in return for which various activities were provided, including general camping, swimming, fishing and boating.

The swimming lake was man-made and was approximately 150 to 175 feet in diameter. The east end was strictly for small children; the west end of the lake was deep; it was sectioned off and a sign was posted that no swimming was allowed there. A large sign, located at the west end of the lake, listed the following regulations:

"LAKE REGULATIONS

Swimming by adult supervision only

No children under 14 without an adult who can swim

No `ducking' or `rough housing'

No pets allowed in the water or on the beach

No long pants — swim suit or `cutoffs' only

Hours — Dawn — 9:00 P.M. for campers"

These regulations were also posted near the lodge and in the restrooms. The "adult swimming rule" was also on every camping receipt. No member of the campground staff was present at all times while someone was swimming; styrofoam lifebuoys were placed on either side of the lake.

Plaintiff testified he and his family arrived at the campground between 1:30 a.m. and 2 a.m. on September 5, 1971. The McClure children got up around 6:30 a.m., ate breakfast and engaged in various activities. About 30 to 40 minutes later, Mark, age 15, requested permission from his mother to go swimming with his brother, Steven, age 14, and two friends; according to plaintiff, Mark was an excellent swimmer. Plaintiff remained at the camper drinking coffee with friends until his son Steven came running back to the camper saying that Mark had gone down in the lake. Plaintiff returned to the lake with Steven. Several men went into the lake and brought Mark up. Attempts were made to revive Mark; ambulances arrived in about 15 to 17 minutes. On cross-examination plaintiff stated that he had not read the swimming regulations on the camping receipt nor had he inspected the swimming lake prior to the occurrence.

Mrs. Evelyn McClure's testimony was substantially the same as her husband's. She also stated that during the rescue operation someone threw a styrofoam "raft" out to the men and it broke in half, so a rope was used to pull the men and Mark to shore. On cross-examination she stated that she had allowed her son to swim unsupervised in areas other than defendants' campground. She did observe the swimming lake when the family arrived; she saw a regulation sign and as both her sons could swim and were 14 and 15 years old, she gave them permission to go swimming.

Steven McClure testified that after receiving permission Mark and he and two friends went to the shore of the lake; the water was cold and it took a while to get used to the water. The boys swam across the lake several times, then engaged in a game of tag. When it was Mark's turn to be "it" he started swimming from the far side of the lake towards the others; however, in about the middle, he stopped swimming and began splashing around. Mark then went under the water; Steven did not hear him cry out. At first no one did anything; then someone yelled to go and get Mark's parents. Steven swam back to shore and returned to his family's campsite. He returned to the lake with his parents and helped point out where Mark had gone down. He also observed the styrofoam "ring" break during the rescue operations.

Dr. Robert F. Dearborn testified that he was called to the defendants' campground where he confirmed Mark's death. According to Dr. Dearborn the body showed signs common to one who has drowned or who has been asphyxiated. On cross-examination, he stated he did not ...


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