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October 24, 1994


Appeal from the Circuit Court of Cook County. Honorable Donald J. O'Brien Judge Presiding.

Rehearing Denied November 30, 1994. Released for Publication December 16, 1994.

O'connor, Campbell, Buckley

The opinion of the court was delivered by: O'connor

JUSTICE O'CONNOR delivered the opinion of the court:

Defendant, the Chicago Board of Education (the Board) appeals a jury verdict against it in favor of plaintiff, Nathan Williams, Administrator of the estate of Antar Williams in this wrongful death action.

On February 6, 1985, Antar Williams drowned in a swimming pool at George Washington High School in Chicago. Plaintiff, Antar's father, filed this wrongful death action against the school's swimming instructor John Costello *fn1 and against the Board, alleging numerous grounds of recovery in several complaints. Most of these grounds were either dismissed prior to trial or by directed verdict in the Board's favor.

The case proceeded to trial on plaintiff's fourth amended complaint, which alleged the Board's and Costello's negligence and wilful and wanton conduct in ignoring both Antar's fear of the water and the fact that he could not swim; in failing to supervise Antar; and in allowing Antar to swim without a rope separating the deep and shallow ends of the pool. Only the last claim survived the Board's motion for directed verdict, and the trial court permitted Williams, after trial, to amend his pleadings to conform to the proof so as to state an additional claim that the Board was either negligent or wilful and wanton in failing to inform Costello that state law required him to place a rope in the pool, separating shallow water from deep. *fn2

According to plaintiff's theory of the case, the drowning occurred either during or after Antar participated in a swimming class with 32 other students, administered as part of the school curriculum. Under either theory, Antar was in the shallow end of the pool and began drifting into the deep end. *fn3 He was not a swimmer, and thus he was helpless because although the Board provided rope-buoys to the school, on the day Antar drowned, the rope was not tethered across the pool where shallow water met deep.

During class, Antar had been practicing kicking and breathing in the shallow end of the olympic-sized pool. The pool was of the type that slopes toward the deep end, which had a depth of 12 feet. The shallow end was five feet deep and under. Costello supervised the swimming by standing on the pool deck, at the point where the bottom began sloping downward. He did not place the safety rope across the pool that day because all class activities were occurring in the shallow end. The students were doing kicking and breathing exercises by holding onto the troughs on the sides of the pool. Costello only used the rope when the students were swimming the width of the pool. He stated that not having the rope in place on the day of Antar's drowning constituted neither negligence nor gross negligence.

Alan Caskey, a park and recreation safety planner and consultant, testified that with the exception of competitive swimming meets, the life rope should be in place at all times, even if all students are confined to the shallow end of the pool. According to Caskey, failure to have the rope in place constituted a conscious disregard for the safety of the children using the pool. Caskey based his opinion in part on his interpretation of section 820.200(h)(i)(2) of the Illinois Department of Public Health Environmental Engineering Code, quoted above, though he conceded the section did not actually so state.

At some point after Antar's class ended, Costello found Antar's body at the bottom of the deep end of the pool, below the diving board. The record is unclear as to precisely how long after class this occurred. Costello believed that he had cleared all students from the pool although he did not conduct roll call after class was over. He had supervised three students in the deep end who were swimmers and made sure they were out of the pool. He also observed the students getting out of the shallow end of the pool. He spent some extra time with three other students in the shallow end, got them out, escorted them to the locker room, walked into the locker room to check on the students, returned to the pool and shut the doors. He started walking around the pool and noticed something at the bottom of the pool. He dove in and retrieved Antar.

There were several doors leading to the pool area. Caskey testified that state regulations in effect at the time required all doors leading to an indoor pool be self-latching, meaning that they locked when shut. (See 77 Ill. Adm. Code 820.200(a)(2) (1985)). Although the doors to the pool were apparently not of this type, Costello testified that he locked all of the doors after class; however, several students had come back into the pool area after class, indicating that the doors might not have been locked or that the locks were broken. No one saw Antar get back into the pool; however, fellow students Daphne Scuggs and Joseph Flores saw Antar getting out of the pool. Scuggs recalled seeing Antar going into the boys locker room; however, Flores did not see him there.

The Board issued a staff manual for swimming instructors Section V.C of the manual is entitled "Responsibilities." Subsection C(10) states "Provision of float guidelines (life lines) for deep water." Costello testified that the Board never provided him with a copy of this manual. Rather, he met with the other swimming staff to formulate swim class policy and procedures. Subsection C(1) of the manual states, as one of the responsibilities, "Establishment of department routines for administration, supervision, and teaching of swimming."

The trial Judge instructed the jury that it could find the Board liable if it found that the proximate cause of Antar's drowning was the Board's failure to install a safety rope separating the shallow from deep ends or its failure to advise Costello of the necessity to install such a rope. The trial Judge also instructed the jury that it could find Antar comparatively negligent if he reentered the pool after he had been instructed to leave. The jury returned a verdict in favor of Antar for $990,000.00 reduced on a finding that Antar was 10% comparatively negligent. Thus, the jury in this case apparently found that at ...

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