Appeal from the Circuit Court of Peoria County, Illinois. No. 92 L 284. Honorable Scott A. Shore Judge, Presiding.
As Modified on Denial of Rehearing February 27, 1995.
Present - Honorable Kent Slater, Presiding Judge, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice. Lytton, J., concurs. Breslin, J., Dissents in part
The opinion of the court was delivered by: Slater
MODIFIED ON DENIAL OF REHEARING
JUSTICE SLATER delivered the opinion of the court:
Sherill L. Blankenship (the decedent) drowned while swimming in a pool owned by defendant Board of Education, Peoria School District 150 (the School District) and operated by defendant Peoria Park District (the Park District). Plaintiff William Blankenship, as administrator of decedent's estate, filed a two-count complaint pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, par. 0.01 et seq.) alleging that defendant's failure to supervise the pool caused the decedent's death. The trial court dismissed count I, finding that the Park District owed no duty to the decedent and that even if a duty had existed, the Park District was granted immunity by section 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 3-108). Thereafter, the court granted the School District's motion for summary judgment with respect to count II and this appeal followed.
For purposes of determining whether count I was properly dismissed, we deem admitted all well pleaded facts contained in plaintiff's second amended complaint. (See Falk v. Martel (1991), 210 Ill. App. 3d 557, 569 N.E.2d 248, 155 Ill. Dec. 248.) Plaintiff alleged that decedent was participating in a public swim sponsored by the Park District for which she paid an admission fee. Plaintiff further alleged that the Park District had promulgated rules and regulations which required a lifeguard to be present at all times when the pool was in use during posted hours. These rules required the lifeguard to watch, direct and safeguard swimmers. According to the complaint, on the day the decedent drowned at least three lifeguards were working at the pool. Five to ten minutes before the decedent drowned, the lifeguards cleared the pool to allow for five minutes of "adult swim." The Park District's rules provided that the lifeguards could use this time for "breaks" but one lifeguard should remain on duty. Plaintiff alleged that all of the lifeguards went into a small room adjacent to the poolwhere they were unable to see the pool. The decedent, the only adult swimming in the pool during the adult swim, struck her head while diving and floated face down in the water for two to three minutes before someone noticed her and ran to get the lifeguards. Plaintiff alleged that the Park District was negligent in that it: (1) failed to properly watch, supervise and control the decedent; (2) failed to warn that the pool was not going to be watched; (3) failed to notice decedent and administer artificial respiration in a timely manner; and (4) failed to prevent the decedent from diving into the pool.
Plaintiff contends that the trial court erred in finding that the Park District owed no duty to the decedent. Plaintiff argues that a duty to supervise arises under section 3-108(b) of the Tort Immunity Act or, alternatively, that defendant owed the decedent a common law duty of care. Section 3-108 provides:
"§ 3-108. (a) Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.
(b) Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours of such use, the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said hours posted." (Emphasis added.) Ill. Rev. Stat. 1991, ch. 85, par. 3-108.
Plaintiff maintains that the language emphasized above imposes a duty on local public entities to provide supervision during posted hours. We disagree. Section 1-101.1 of the Tort Immunity Act states that the purpose of the Act "is to protect local public entities and public employees from liability arising from the operation of government. It grants only immunities and defenses." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 1-101.1.) Moreover, the courts of this state have repeatedly held that "the Act does not create any new liabilities for negligent acts or omissions which did not previously exist, but rather articulates the common law duty to which the subsequently delineated immunities apply." ( Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 412, 583 N.E.2d 538, 542, 164 Ill. Dec. 622 (citing cases).) We find, therefore, that section 3-108(b) of the Tort Immunity Act did not impose a duty on the Park District to supervise the activities at the pool.
We next consider whether the Park District owed a common law duty of care to plaintiff. Plaintiff relies on Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, 80 Ill. Dec. 40, and Brumm v. Goodall (1958), 16 Ill. App. 2d 212, 147 N.E.2d 699, to establish the existence of such a duty. In Cope, our supreme court held that a retention pond at an apartment complex presented an obvious risk of drowning such that no duty of care was owed to a seven-year-old boy who had drowned there. In distinguishing the facts presented in Cope from cases involving swimming pools, the court stated:
"Our courts and the legislature have traditionally regarded public swimming pools differently from other bodies of water. (See Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1201 et seq.) The law in Illinois does place a duty upon private operators of public swimming pools or public bathing resorts to take precautions for the safety of their patrons. As expressed by the court in Decatur Amusement Park Co. v. Porter (1907), 137 Ill. App. 448], it is inevitable that injuries will occur at public bathing facilities, and the law imposes a duty to guard against the character of accidents which 'common knowledge and experience teach are liable to befall those engaging in the sport which [defendant] had invited the public to participate in.' ( Decatur Amusement Park Co. v. Porter (1907), 137 Ill. App. 448, 452.)" Cope, 102 Ill. 2d at 288, 464 N.E.2d at 1028.
In Brumm, a 14-year-old boy drowned at a public pool operated by a private individual. Although three lifeguards were on duty at the time the boy drowned, the court affirmed a jury verdict in favor of plaintiff, holding that there was sufficient evidence presented from which a jury could find that there were not enough lifeguards on duty or that they did not keep a proper lookout. With respect to the defendant's duty, the court stated: "That the defendant was under a legal duty to make reasonable provision and to take ...