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08/17/94 MICHAEL BUCHELERES AND BETTY BUCHELERES

August 17, 1994

MICHAEL BUCHELERES AND BETTY BUCHELERES BIVANS, PLAINTIFFS-APPELLANTS,
v.
CHICAGO PARK DISTRICT, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DONALD P. O'CONNELL, JUDGE PRESIDING.

As Modified On Denial of Rehearing February 8, 1995. Rehearing Denied February 6, 1995. Released for Publication March 21, 1995.

Justice Rizzi delivered the opinion of the court: Tully, J., concurs. Greiman, P.j., Dissents.

The opinion of the court was delivered by: Rizzi

MODIFIED ON DENIAL OF REHEARING

JUSTICE RIZZI delivered the opinion of the court:

Plaintiffs, Michael Bucheleres and Betty Bucheleres Bivans, filed an action to recover damages against defendant, the Chicago Park District, resulting from personal injuries sustained by plaintiff Michael Bucheleres when he dove off of a concrete seawall into Lake Michigan and struck his head on the bottom of the lake. Defendant filed a motion for summary judgment which was granted. Plaintiffs now appeal. We reverse and remand.

On May 27, 1988, plaintiff Michael Bucheleres fractured his neck upon diving into the lake off of a concrete seawall which extended approximately 100 feet into the lake from the Oak Street Beach at Division Street and North Lake Shore Drive (Division Ledge). Plaintiffs filed the present action.

On June 8, 1990, defendant filed an answer to plaintiffs' second amended complaint. In its answer, defendant conceded that it maintained and controlled both the Oak Street Beach and the Division Ledge, but denied that it supervised, operated, managed, maintained or controlled the adjacent waters and littoral sand bottom of the lake on the date plaintiff Michael Bucheleres was injured. Defendant, however, admitted that it had the sand graded for it on December 22, 1987, and that it graded the sand from April 19, 1988 through April 22, 1988. Defendant also admitted that on April 23, 1987, William T. Donovan, a surveyor, made a written record that the sand bottom of the lake was five and six tenths feet below the top of the southeast corner of the Division Ledge and Oak Street Beach. Defendant also admitted that it knew of people who were diving from the Division Ledge into the lake during the summer of 1987, and that it knew that persons who dove off of the Division Ledge during the summers of 1983 through 1986 and struck their heads on the bottom of the lake near the seawall.

The trial court was furnished with deposition testimony from several witnesses including Greg Clausen, John Hamilton, Michael Morton and Joseph Pecoraro. Clausen, Hamilton and Morton were all present when plaintiff Michael Bucheleres dove into the lake, and Hamilton and Morton pulled plaintiff out of the lake when they saw him floating face down in the water. Morton, Hamilton and Clausen all testified that they did not see any warning signs in the area of the Division Ledge pertaining to diving or restrictions on diving on the day that plaintiff was injured.

Clausen further testified that in the years that he had visited the Division Ledge area prior to the accident, he had not seen any stenciled signs which said "No Diving" until the year after plaintiff's accident.

Morton testified that the water near the Division Ledge was shallow on the date of plaintiff Michael Bucheleres' dive. Morton testified that he himself brushed the bottom of the lake when he dove into the water from the Division Ledge on the same day. Morton stated that he was surprised when he touched the bottom of the lake because the water appeared to be deeper than it was when he looked down at the water before diving.

Hamilton, who had worked as a lifeguard at the Oak Street Beach during the summers of 1983 through 1985, recalled that during that time, the entire area east of the Division Ledge was hazardous for purposes of diving because of shallow water. Hamilton also testified that there were signs stenciled on the ground which read "No Diving." Hamilton further testified that people dove off of the Division Ledge and hit their heads on the bottom of the lake during this period of time.

Joseph Pecoraro, the general supervisor of beaches and pools for defendant at the time of plaintiff's accident, was also deposed. Pecoraro testified that during the spring of 1988, the water level in the lake had dropped and that the beach was graded every year in such a way that the sand was pushed out into the lake. Pecoraro further testified that he intended to have "No Diving" signs stenciled to the pavement in the area of the Division Ledge before the Oak Street ...


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