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Leonard v. Pitstick Dairy Lake & Park

OPINION FILED MAY 11, 1984.

RICHARD LEONARD, A MINOR, BY KAREN LEONARD, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

PITSTICK DAIRY LAKE AND PARK, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 28, 1984.

Plaintiff Richard Leonard was rendered a quadriplegic as a result of a spinal cord injury incurred when he performed a running dive in the shallow water at defendant's commercial lake in La Salle County, Illinois. Plaintiff filed a suit for personal injuries against Pitstick Dairy Lake and Park, Inc., the corporate owner-operator of the beach, and after a lengthy jury trial, the jury returned a verdict for defendant. Plaintiff appeals.

The swimming lake was deepest in the center where two diving rafts were located and where the water was 11 feet deep. About 57 feet from the edge of the water, a steel cable marked the limit of the shallow water, dividing the diving area from the wading and swimming area. From the water's edge at the beach, the water sloped downward at a fairly even rate of decline to the cable where the water was about four feet deep. Lifeguards were located on elevated chairs on all sides of the lake, and all were equipped with a telephone system to communicate between guard stations. A loudspeaker system was also in operation which could be heard throughout the swimming area.

On June 14, 1979, plaintiff was 15 years old and had just completed his first year of high school. He was 5 feet 10 inches tall and had grown nearly 2 1/2 inches since the previous summer. He had been swimming at Pitstick Lake six or seven times the previous summer and several times during earlier seasons, but had not been swimming yet during the summer of 1979. He arrived at the beach shortly after noon with several high school friends. One of the boys did not feel well, so plaintiff stayed with him at the bath house while the other boys went down the beach and entered the water. A short time later plaintiff went down the beach alone, stopped at the water's edge to test the temperature of the water with his foot, and then began a loping trot in the water. About one-half way to the cable, when the water was just above his knees, plaintiff put his hands out above his head and performed a horizontal dive into the water, which at that point was about 2 1/2 feet deep. His hands hit the bottom of the lake followed by his head with sufficient force to jam his chin into his chest. He heard a pop and felt a sharp pain in his neck and a strong tingling sensation through the rest of his body. He was then aware that he was floating face down in the water, but he was not able to move. He held his breath until he was rescued by a lifeguard who had seen him floating face down in the water with his head twitching. The life guard realized that something was wrong.

Plaintiff was hospitalized for seven months with a crushed fourth cervical vertebra and a displacement of the third cervical vertebra. He has some feeling but almost no movement from the neck down except for some ability to move with his arms. He has some minimal ability to feed himself and to write, but he is totally dependent on others for bathing, dressing, transportation, meal preparation, and general care. He suffers from severe muscle spasms which require him to be strapped into a wheel chair to avoid being thrown out. He can expect no significant improvement for the remainder of his life. He now lives at home where his parents care for him under the supervision of a physical therapist. He has been able to complete high school and to receive a diploma at the same time as the rest of his classmates.

Plaintiff filed suit against defendant corporation, and the cause was tried before a jury upon the theory that defendant was negligent in permitting young persons, including plaintiff, to perform surface dives in shallow water and in failing to post signs warning of the danger. On appeal from the verdict in favor of defendant, plaintiff asserts as error numerous rulings on the admission of evidence and on jury instructions and also asserts that the verdict was contrary to the manifest weight of the evidence.

As is to be expected in a hotly contested trial of four weeks' duration, some errors occurred and certain statements were made which the jury should not have heard. Most of the errors were not of a gravity to be considered reversible error, but two of the erroneous rulings were of sufficient magnitude to affect the outcome of the trial and, therefore, denied plaintiff the fair trial to which he was entitled under laws of the State of Illinois.

Of critical importance was the ruling of the trial court refusing to permit plaintiff's expert witness to express an opinion as to whether it was an unsafe practice to permit surface dives in the shallow water at defendant's beach. According to James Farson, defendant's manager of the bathing beach, no effort was ever made to prevent shallow water diving. The manager testified that he saw many young people perform such dives, and he had dived shallow himself when swimming. By his testimony, the manager left no doubt that such diving was observed, permitted and condoned by defendant in the operation of the beach. The "Beach Safety Rules" posted on the bath house prohibited running or throwing sand, wrestling and pushing on the raft and tower, ball playing on the beach, inflated toys outside the "rope," and playing on the "ropes." However, the "Safety Rules" made no reference to diving.

The manager's testimony that shallow diving was permitted was corroborated by two patrons of the beach, Craig Totel and John Fuller, who testified that they had made many such shallow water, running dives at Pitstick Lake and had never been warned of the possible danger. Two lifeguards employed by defendant, Sue Bohannon and Keith LeBeau, also testified that they had made many running dives in shallow water themselves and that they had observed many bathers making such dives at Pitstick Lake before June 14, 1979, and they were never told to stop such diving practice.

Finally, Edwin Pitstick, owner of the bathing beach lake, testified that he never knew of anyone getting hurt doing a shallow dive, that he did not perceive any danger to youngsters doing shallow dives before this accident, that it never crossed his mind that a dive in shallow water would likely cause injury, and that he permitted running dives in shallow water. At trial, it was defendant's position that the corporation had no knowledge of any danger from permitting shallow dives and, therefore, was not negligent in permitting such dives and in failing to warn.

Plaintiff called as a witness Dr. George E. Lawniczak who had done studies, research, and writing in the field of biomechanics, particularly diving mechanics. He testified that he has studied the trajectory and speed of the human body at various points during a dive, the angles associated with a dive, the forces that may result from contact with a barrier, and the general subject of motion during a dive. In addition to other areas of study and research, Dr. Lawniczak has been retained by a swimming pool company to advise as to safety and warning signs. The witness had visited defendant's lake prior to trial and had walked the bottom of the lake, examined signs, and viewed the layout and composition of the lake bottom.

Dr. Lawniczak testified that there are 800 spinal cord injuries as a result of diving in the United States each year, that 94% of those injuries result in quadriplegia, that such injuries cause quadriplegia because only a minimal amount of force is required to break the neck and thereby damage the spinal cord, that 50% of all quadriplegias occur in the 15 to 25 year age group, and that 82% are male. Such injuries do not occur with younger children because they are shorter, weigh less, and lack the strength to generate sufficient force to cause a neck fracture. The most common type of injury is that experienced by plaintiff, where the head strikes the bottom in such a way that the chin is forced into the chest and the extreme flexion of the neck causes fractures and dislocation of the cervical vertebrae. The witness stated that 300 pounds of force will result in a spinal cord injury, and in an incident of the type which occurred here about 1,800 pounds of force would be generated by plaintiff's contact with the bottom of the lake.

The expert witness further testified that a person five feet tall will slow down to half the diving speed in approximately five feet of travel through water, while a person six feet in body length will require eight feet to slow down to one-half the speed at water entry. This is because the center of mass of the longer body is out of the water longer, and as a consequence, the speed of the head can actually increase during the first two feet after ...


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