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12/18/87 Marianne Kavanaugh, Indiv. v. Midwest Club

December 18, 1987

MARIANNE KAVANAUGH, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF THOMAS KAVANAUGH, DECEASED, PLAINTIFF-APPELLANT,

v.

MIDWEST CLUB, INC., A CORPORATION AND THE VILLAGE OF OAK



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Brook, Defendants-Appellees, and (The County of Du

Page, Defendant)

517 N.E.2d 656, 164 Ill. App. 3d 213, 115 Ill. Dec. 245 1987.IL.1875

Appeal from the Circuit Court of Du Page County, Illinois, No. 85 L 1406; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Marianne Kavanaugh, administrator of the estate of her deceased husband, Thomas Kavanaugh, brought this wrongful death and survival action against defendants, Midwest Club, Inc., Village of Oak Brook (Oak Brook), and Du Page County, arising out of an occurrence in which her husband suffered an epileptic seizure while driving a vehicle, which then left the highway and became submerged in a retention pond on Midwest Club's property, thereby resulting in his death by drowning. This interlocutory appeal by plaintiff under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) arises from an order dismissing the counts against Midwest Club and Oak Brook pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615). The trial court found that no duty to plaintiff's decedent was owed by Midwest Club and that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) barred recovery against Oak Brook. Du Page County is not a party to this appeal, and the counts against it are pending in the trial court.

On appeal, plaintiff contends that Midwest Club owed a duty of ordinary care under the circumstances because it was foreseeable that a vehicle could leave the highway and enter the retention pond or, if not foreseeable, the duty of ordinary care was owed because the deceased left the highway out of private necessity and therefore he was a rightful entrant upon Midwest Club's property. As against Oak Brook, plaintiff maintains that police officers of Oak Brook were negligent in their voluntary rescue attempt and that the provisions of the Tort Immunity Act do not apply.

Plaintiff's third amended complaint, in pertinent part, alleges the following. On November 29, 1984, Mr. Kavanaugh was driving a vehicle east on 31st Street in the Village of Oak Brook. Midwest Club owned and maintained a retention pond located in the vicinity of 31st Street and Midwest Road. After Kavanaugh suffered an epileptic seizure, his vehicle left the roadway, entered the retention pond, and became completely submerged.

Thereafter, an off-duty security guard of Midwest Club telephoned the Oak Brook police department and informed them of the incident. Several officers were dispatched to the scene, none of whom carried the equipment necessary to perform underwater rescue.

Upon their arrival at the scene, the officers unsuccessfully attempted to rescue Kavanaugh, who was still alive, from his submerged vehicle. After the failed attempt, the Oak Brook police department requested assistance from the Lisle-Woodridge Recovery Team. The subsequent rescue efforts were also unsuccessful.

In the two counts against Midwest Club, plaintiff alleges that Midwest Club owed a duty to use reasonable care for the safety of Kavanaugh and was negligent by failing to erect guards or barriers around the retention pond, by failing to design the retention pond in a safe manner, by locating the retention pond too close to 31st Street, and by failing to erect a fence between the retention pond and 31st Street. The one count against Oak Brook alleges that upon dispatching the police officers to the scene of the incident, Oak Brook voluntarily undertook to rescue Kavanaugh and assumed the duty to perform the rescue without negligence. It further alleges that Oak Brook was negligent in delaying the arrival of trained water rescue personnel and by dispatching personnel with no diving or water rescue gear and no training in water rescue.

Following the filing of motions to dismiss by Midwest Club and Oak Brook, the trial court dismissed all the counts against these parties, finding that Midwest Club owed no duty towards plaintiff's decedent and that the Tort ...


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