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Prince v. Wolf

OPINION FILED FEBRUARY 11, 1981.

GORDON PRINCE, ADM'R OF THE ESTATE OF RICHARD THOMAS PRINCE, DECEASED, PLAINTIFF-APPELLANT,

v.

ARTHUR M. WOLF ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

In June 1974, Richard Thomas Prince, a 15-year-old, drowned in a retention pond in Hazel Crest, Illinois. A four-count complaint was filed by Gordon Prince, decedent's father and administrator of his estate. The complaint named as defendants Arthur M. Wolf, Bernard R. Wolf, The SWA Group, a California corporation, and parties who were dismissed prior to trial. Counts II and IV of the complaint were dismissed and defendants answered the remaining two counts. Count I alleged that defendants Arthur Wolf and Bernard Wolf were negligent in failing to place signs and properly supervise or fence and barricade the retention pond. Count III alleged the negligent design of the artifically created body of water by the Wolfs and The SWA Group.

Defendants responded to the complaint by filing motions for summary judgment. On August 27, 1979, the trial court, upon finding the retention pond was not a defective structure or dangerous agency and defendants owed no duty to plaintiff, entered an order granting summary judgment for defendants.

The sole issue on appeal is whether the trial court committed reversible error when it ruled that defendants owed no duty to plaintiff's decedent as a matter of law.

We affirm.

Deposition testimony provided most of the evidence. Ramon Prince testified that on June 12, 1974, he, his brother, Richard (the decedent), and five other boys wanted to go swimming. He said they walked to the water retention pond at the condominium complex known as Village West, located in the village of Hazel Crest, Illinois. The boys began wading in the pond. They were doing so for approximately 20 minutes when two of them and Richard swam toward the opposite shore. Two of the boys observed that as Richard approached the bank of the pond he began struggling. They attempted to rescue him; however, by the time they had moved him to within a short distance of the bank, his body sank in the water.

Ramon and Richard had never swum in the pond at Village West prior to the day of the drowning. The boys' parents had warned them against swimming in "mudholes" such as the retention pond. The boys did not have anyone's permission to swim there.

Ramon testified that on the day of the drowning there were no signs or fences around the pond. He said he had seen other children wade in the ponds prior to the day of the drowning.

Jeffrey Shepard, one of the boys who was with Richard, gave a deposition and submitted a sworn affidavit. The affidavit stated, in pertinent part, that Jeffrey swam in the same area where Richard drowned; that Jeffrey attempted to rescue Richard; that where they entered the lake the water was shallow but near the opposite shore it was deep; that Jeffrey swam in the same area on prior occasions; and that no signs were posted indicating a variance in the depth of the water.

Arthur Wolf also testified by deposition. He stated that the three artificial bodies of water on the complex grounds were retention ponds required by the Metropolitan Sanitary District of Greater Chicago. The SWA Group designed the ponds. The designs were approved by the village of Hazel Crest. Thereafter, private firms completed engineering plans and excavation work on the ponds. The ponds covered 11 acres. They were constructed to accommodate ground and storm water. They were not designed for sewage disposal.

Arthur Wolf further stated that prior to the drowning, he thought no swimming had taken place in the ponds because there were signs prohibiting swimming and the water was dirty. He did not recall whether signs were posted on the day of the drowning. He said there were no fences or guards at the site in question.

The village of Hazel Crest required that a certain level of water be maintained in the lakes and that wells should be dug for that purpose. Wells were never dug because the water level of the lakes had been constant. The depth of the deepest part of the pond in which Richard drowned was approximately 8 feet.

Bernard Wolf also testified by way of deposition. His testimony was substantially the same as that of Arthur Wolf. He did not know whether signs prohibiting swimming were posted near the ponds. He stated he never saw people in the ponds.

At issue is whether defendants owed any duty under the applicable principles of negligence. A leading case that addresses the issue of duties imposed upon owners and occupiers of land is Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 ...


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