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09/30/94 CRAIG OSBORNE v. DR. RICHARD CLAYDON

September 30, 1994

CRAIG OSBORNE, PLAINTIFF-APPELLANT,
v.
DR. RICHARD CLAYDON, MARILYN CLAYDON, POLYNESIAN POOLS, LTD., POLYNESIAN, INC., A FOREIGN CORPORATION AND POLYNESIAN POOLS & SPAS INTERNATIONAL, INC., A FOREIGN CORPORATION, AND L&L POOL COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McLean County. No. 92L4. Honorable William T. Caisley, Judge Presiding.

As Corrected November 22, 1994.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On January 6, 1992, plaintiff Craig Osborne brought suit in the circuit court of McLean County against defendants Dr. Richard Claydon, his wife Marilyn Claydon, and others seeking damages for injuries plaintiff suffered when he dove into a swimming pool on the Claydons' premises on June 12, 1990. After plaintiff filed an amended complaint, only count I of which was directed against the Claydons, the Claydons moved for summary judgment as to that count. On December 22, 1993, the court entered summary judgment as to thatcount in favor of the Claydons in bar of action. The order found no just reason to delay enforcement or appeal. (134 Ill. 2d R. 304(a).) Plaintiff has appealed. We affirm.

The amended count I alleged that (1) at least from the summer of 1988, the Claydons had permitted their minor son Chris and plaintiff, also a minor, to use the swimming pool without supervision or safety rules particularly in regard to diving; (2) in particular, the boys had been permitted to run from a grass area beside the pool, across a cement deck and to dive in the shallow end of the pool; (3) as a result, the boys had repeatedly performed that conduct up to and including the time of plaintiff's injury, often in the Claydons' presence; (4) on the date of the injury, the Claydons left for a vacation but without arranging for adequate supervision of those who used the pool and did not prohibit use during their absence although they had reason to believe the pool would be used; and (5) at the time of plaintiff's injury, he sought to avoid another person using the pool who was floating on a raft and struck his head on the bottom.

Count I of the amended complaint summarized the Claydons' allegedly tortious conduct as (1) permitting the use of the pool and leaving it in an operable condition when no adequate supervision was present, and (2) permitting plaintiff and others to perform dangerous dives into the shallow end of the pool without warning them of the dangers. The Claydons' motion for summary judgment set forth certain facts which we will discuss and concluded that the sole issue before the court was whether "the Claydons had a duty to warn a [17]-year-old young man of the risks of diving headfirst into their in-ground swimming pool" in which he had previously swum and dived frequently.

A motion for summary judgment should only be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (735 ILCS 5/2-1005(c) (West 1992); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871, 95 Ill. Dec. 305.) In deciding whether to grant summary judgment, a court shall construe the pleadings, affidavits, depositions, admissions, and exhibits strictly against the movant and liberally in favor of the opponent. When this is done, and the record indicates all the evidence is before the court, and no judgment for the respondent to the motion could ever stand, the court should grant the motion for summary judgment. Barnes v. Washington (1973), 56 Ill. 2d 22, 26-27, 305 N.E.2d 535, 538; Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.

The issue of whether one person or entity owes a duty to exercise care to prevent injury to another is a question of law to be decided by the court. ( Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396, 111 Ill. Dec. 944; see Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) Where, as here, the duty of adult owners or occupiers of land to minors is involved, the adult owners or operators owe a special duty to protect minors from dangerous conditions of the premises which are likely to cause injury to minors who, because of their age and immaturity, would not be expected to comprehend and avoid the risks. (See Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023, 1027, 80 Ill. Dec. 40.) We affirm here because we conclude that plaintiff was old enough and mature enough to appreciate the danger of the dive he was performing when injured.

The following facts are undisputed: (1) the Claydons had an in-ground swimming pool at their residence during times significant; (2) that pool was three feet deep at its shallow end, sloped only slightly for approximately 10 feet and then sloped downward to a depth of 8 1/2 feet at the deep end; (3) plaintiff was 17 years and 3 months old on June 12, 1992, when he was severely injured in the spine while making a running dive into that pool; (4) he was there as a guest of the Claydons' 16-year-old son, Chris, who was a close friend; (5) two younger girls, Kim and Jamie, were also present after receiving permission from Chris to come and had been playing with a small inflated raft; and (6) plaintiff made a run from approximately 10 feet from the shallow end to the edge of the pool and dove out over the raft and into the pool whereupon his head hit the bottom of the pool resulting in severe injury to his spine.

Plaintiff testified in a discovery deposition that he had been a member of the Bloomington High School swim team the previous year and had made racing starts from a box whereby he was required to spring out as far as possible and to stay close to the surface of the water. Plaintiff testified that he was unaware of the danger from diving of receiving a spinal cord injury such as he suffered. Plaintiff's swimming coach testified by affidavit that while practicing with the swimming team, plaintiff made approximately 40 racing dives per day, but he had never explained to plaintiff or others the possible injuries which would result from diving into a pool and hitting the bottom with the head. Plaintiff also testified that since 1988, he had been a frequent user of the defendants' pool, had dived into the pool from the shallow end on many occasions, and often made a running dive from the position he ran from when he was injured.

Dr. Richard Claydon testified in a discovery deposition that hewas aware of the phenomenon we later discuss called "rudder-down effect" and that he had seen plaintiff dive from the shallow end of the pool from a standing position. Marilyn Claydon testified in a deposition that she was not aware of the "rudder-down effect" at the time of the injury to plaintiff but upon having it explained, she deemed it logical. She also denied having seen plaintiff dive from the shallow end of the pool, either from a standing or running start. However, plaintiff testified that Marilyn Claydon had been present when he made a running dive. As the Claydons were the movants, seeking the summary judgment, we must assume plaintiff's testimony was correct in passing upon the propriety of the summary judgment.

In Cope, the supreme court affirmed an appellate court decision ( Cope v. Doe (1983), 113 Ill. App. 3d 1167, 457 N.E.2d 171, 75 Ill. Dec. 381 (unpublished order under Supreme Court Rule 23)) reversing a circuit court judgment of a verdict for a plaintiff as administrator suing for the death of a seven-year-old boy who had drowned in a pond at defendant's apartment complex. The pond was partially covered with ice, but contained a large portion of visible, open water. The supreme court concluded the situation presented obvious danger even to a seven-year-old boy. ( Cope, 102 Ill. 2d at 289, 464 N.E.2d at 1028.) Similar determinations of lack of duty to minors, because of the obvious nature of the hazard involved, have been made in regard to landowners in Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963, 550 N.E.2d 665, 140 Ill. Dec. 780 (minors drowning in a man-made duck pond), Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, 509 N.E.2d 692, 109 Ill. Dec. 31 (minor killed by rushing floodwater), and Weber v. Village of Carol Stream (1984), 129 Ill. App. 3d 628, 472 N.E.2d 1203, 84 Ill. Dec. 807 (minor drowning in partially ice-covered pond).

Plaintiff's counsel explained at oral argument that had plaintiff made a dive from a place which was dangerous because of its height, the danger would have been readily apparent to plaintiff, and the Claydons would have owed no duty to plaintiff to protect him from such conduct. However, plaintiff maintains that because the dive made here by him was a "surface" type of dive, Illinois precedent establishes that the dangers of such a dive would not ordinarily be apparent to minors, and we should not hold here that the dangers of plaintiff's dive was readily apparent. In chronological order, those cases are Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 ...


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