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06/02/87 the Old Second National v. Aurora Township Et Al.

June 2, 1987






509 N.E.2d 692, 156 Ill. App. 3d 62, 109 Ill. Dec. 31 1987.IL.734

Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. NASH and REINHARD, JJ., concur.


The plaintiff, The Old Second National Bank, as special administrator (the administrator) of the estate of the decedent, 14-year-old Marc R. Weber, brought suit against the defendants, Aurora Township (the township) and Hill, Brinda and Larson (the partnership), pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et. seq.) to recover for the decedent's drowning. In this consolidated appeal, the administrator appeals from the judgments of the circuit court of Kane County granting the defendants' separate motions for summary judgment and their motions to strike the affidavit of John R. Shack, Ph. D., which was attached to the administrator's response to the motions for summary judgment.

Decedent drowned on July 2, 1983, while inner tubing on floodwater in a ditch on the west side of and parallel to McClure Avenue in Aurora Township. Extraordinarily heavy rains the night before had caused the normally dry, grassy area of the ditch to become flooded. Decedent and a friend, Hector Martinez, were taking turns riding an inner tube on the current of the fast-moving water, which was flowing in a northerly direction. Decedent's 13-year-old brother, Kurt Weber, was also present, but he did not know how to swim and was not riding the inner tube. Decedent knew how to swim.

One boy would ride the inner tube to a point just a few feet south of the location of a 96-inch diameter corrugated metal culvert where the other boy was waiting and would catch him. The rider would dismount, remain at that location -- thus becoming the catcher -- while the other boy would take the inner tube south to the starting point and begin his ride. The culvert ran underneath McClure Avenue in an east-west direction; through this culvert flowed a minor waterway known as Indian Creek. The point of discharge of the culvert into the ditch was approximately 8 feet east of the property line of land owned by the partnership. The north edge of the culvert was intersected diagonally in a northeast-southwest direction by an abandoned railroad trestle which was partially on partnership property and partially on township property. The boys were familiar with the area of the ditch. According to Martinez' deposition, the culvert was covered with water on the day in question.

Each of the two boys had at least two turns riding the inner tube before the tragic incident occurred. According to the record, the inner tube got away from the decedent and floated north. Decedent, who was swimming at this point, not standing, let the current take him to the inner tube, which was bouncing off the side of the trestle. Grasping the inner tube with his right hand, the decedent began swimming against the current back toward Martinez, who was standing waist-deep in the water at a point south of the culvert. Suddenly, without a word, the decedent disappeared under the water when he was several feet from the culvert. Martinez immediately tried to find decedent in the water, but could not. Martinez then walked across the railroad trestle to see if he could see him, but he did not. Martinez and decedent's brother then sought help. Decedent's body was found downstream toward Farnsworth Avenue the next day.

Plaintiff alleged the township and the partnership had a duty to maintain their property in a reasonably safe condition, and, notwithstanding that duty, the township failed to place proper warning signs in, or restrict access to, the area of the dangerous waters and failed to maintain a culvert that would provide for the safe flow of water. As to the partnership, in addition to its failure to place warning signs or restrict access to the area, it was alleged it had failed to maintain the railroad trestle so as to provide for the safe flow of water under it, failed to maintain its lands in such a manner that the danger of the flowing waters could not be appreciated by decedent or children of similar age and experience, and permitted the decedent and other children to play in the area in spite of the dangerous waters.

The partnership's motion for summary judgment alleged the decedent was not playing on its property but, rather, was on the township property; that there is no duty owed to children to protect against obvious water hazards; and that the partnership had no notice of the dangerous condition. The township's motion for summary judgment alleged the decedent would be expected to comprehend and avoid the dangerous condition and, therefore, no duty was owed. In the alternative, the township sought dismissal on the basis it was the Aurora Township Road and Bridge District which maintains and supervises the roads and culverts in Aurora and not itself. Although it is true the court's order here may be affirmed on any basis appearing in the record (Fuller v. Justice (1983), 117 Ill. App. 3d 933; Stern v. Stern (1982), 105 Ill. App. 3d 805), the court's decision to grant the motion for summary judgment was based on the ground that neither party owed decedent a duty to protect him against an obvious water hazard, and it is on this basis we affirm its judgment.

The essential elements of recovery under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.) include a duty of defendant toward the decedent, a breach of that duty, and pecuniary damages resulting therefrom to persons designated by the Act. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 240; Stansell v. International Fellowship, Inc. (1974), 22 Ill. App. 3d 959, 962.) A party moving for summary judgment must affirmatively show that his right thereto is clear, free from doubt and determinable solely as a matter of law. (Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App. 3d 1011.) Summary judgment is properly granted if the pleadings, depositions and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376.) In reviewing the trial court's entry of summary judgment, the function of the reviewing court is to determine whether the trial court correctly ruled that no genuine issue of material fact has been raised, and if none was raised, whether the court correctly entered judgment for the moving party as a matter of law. Campbell v. Haiges (1987), 152 Ill. App. 3d 246; Comtrade, Inc. v. First National Bank (1986), 146 Ill. App. 3d 1069.

The question of duty is a question of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552; Christon v. Kankakee Valley Boat Club (1987), 152 Ill. App. 3d 202; Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042.) When an issue presents only a question of law, it is an appropriate issue for determination by means ...

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