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11/01/94 REBECCA BARNETT v. ZION PARK DISTRICT

November 1, 1994

REBECCA BARNETT, AS SPECIAL ADM'X OF THE ESTATE OF TRAVIS KING, DECEASED, PLAINTIFF-APPELLANT,
v.
ZION PARK DISTRICT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 91-L-439. Honorable William D. Block, Judge, Presiding.

Released for Publication December 6, 1994. Petition for Leave to Appeal Allowed February 1, 1995.

Colwell, Quetsch, PECCARELLI

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, Rebecca Barnett, brought this action against defendant, the Zion Park District, after her 10-year old son, Travis Barnett, drowned at the Port Shiloh swimming pool which is owned and operated by defendant. The trial court granted summary judgment to defendant. Plaintiff appeals, alleging that the depositions and pleadings filed created a genuine issue of material fact and that the trial court's dismissal of certain counts in plaintiff's second amended complaint was improper because the pleadings stated a cause of action under the Local Governmental and Governmental Employees Tort Immunity Act (Act). We affirm.

The facts indicate that Travis Barnett was swimming at the Port Shiloh swimming pool on June 9, 1990. There were 11 lifeguards on duty watching the large pool and diving area, the south pool, and the baby pool. Travis was apparently walking forward on a diving board when he slipped, fell back, and hit his head on top of the board. Several witnesses then saw Travis struggle and slip towards the bottom of the pool. At least two patrons of the pool approached two different lifeguards regarding Travis' accident, but the lifeguards failed to respond to these pleas, saying they did not see anyone fall. After Travis was in the water about two or three minutes, a man finally dove in and pulled Travis from the water. A Port Shiloh lifeguard unsuccessfully attempted to administer CPR to Travis who died soon thereafter.

Plaintiff filed her original complaint on March 18, 1991, and subsequently filed an amended complaint and a second amended complaint. Defendant filed a motion to dismiss the second amended complaint. The trial court dismissed with prejudice the counts in that complaint which alleged negligence. The trial court dismissed with leave to amend the count's alleging willful and wanton conduct. Plaintiff then filed a third and fourth amended complaint. The trial court dismissed most of the allegations contained in the three counts of the fourth amended complaint.

Defendant filed a motion for summary judgment on June 7, 1993, contending that it was not guilty of willful and wanton conduct and, in any case, that it was immune from liability under section 3-108(b) of the Act. Plaintiff filed her fifth amended complaint on June 14, 1993.

Plaintiff's fifth amended complaint alleged in pertinent part that defendant:

"(a) Failed to initiate lifesaving procedures to plaintiff's decedent after being told by another patron of the pool that plaintiff's decedent had slipped, fell and struck his head on a diving board and dropped into the water;

(b) Did not initiate lifesaving procedures to plaintiff's decedent after being told by another patron of the pool that plaintiff's decedent was drowning;

(c) Did not initiate lifesaving procedures to plaintiff's decedent after being told by another patron of the pool that plaintiff's decedent was having trouble swimming."

Plaintiff also submitted to the trial court depositions of pool patrons who witnessed Travis struggling in the water. Karen Montgomery testified that she told a lifeguard that she saw a boy who looked like he needed help in the pool. Montgomery said that Travis was about a foot away from the side of the pool and only a few feet away from her when she spoke to the lifeguard. The lifeguard merely indicated that she had had trouble with those particular kids that day, that they were only playing, and that the boy was alright. The lifeguard then turned away from Montgomery.

Jason Lewis testified that he saw a boy slip and hit his head on the diving board and fall into the pool. Lewis said he quickly went over to tell a lifeguard what had happened. The lifeguard allegedly accused Lewis of playing around and said she did not see anyone fall into the pool. Lewis said he then ran over to the "guard shack" to tell someone else about the incident. The man Lewis talked to then ran out of the guard shack and jumped into the pool to retrieve the boy. Two other witnesses who ...


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