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November 4, 1994



Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Joseph Leane, as Special Administrator of the Estate of Patricia Leane, deceased, (Leane) appeals from the dismissal of his wrongful death complaint against The Joseph Entertainment Group (JEG), with prejudice. *fn1 Leane raises two issues on appeal: (1) whether the trial court erred in finding that JEG owed no duty to Leane, and (2) whether the trial court erred when it denied Leane's motion for leave to amend the complaint.

The facts of this case are as follows:

The defendant, JEG, is a Delaware corporation alleged to have been in possession and control of the premises known as Alpine Valley Music Theater (Alpine Valley), an outdoor amphitheater located in Walworth County, Wisconsin. On July 21, 1990, Patricia Leane attended a rock concert at Alpine Valley and, while attending this concert, suffered an acute respiratory attack *fn2 and died.

In the wrongful death complaint, plaintiff alleged that JEG owed Patricia a duty of care, that they breached that duty by (a) failing to provide adequate medical facilities, (b) failing to have a qualified emergency care medical director readily accessible, (c) failing to have a sufficient number of first aid stations on the premises, (d) failing to have an advanced life support team available on the premises, (e) failing to have a sufficient number of nurses and paramedics on the premises, (f) failing to equip the concession stands with a means of communicating with the medical care facilities, (g) failing to provide for easy accessibility to the medical care facility on the premises, and (h) failing to provide emergency medical care within a reasonable period of time.

JEG moved to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2-615, 2-619; 735 ILCS 5/2-615, 2-619 (West 1992)) on the grounds that the complaint failed to state a cause of action. Specifically, JEG argued that under the facts of the case they had no duty, as a matter of law, to provide medical assistance to Patricia for a condition unrelated to the status of their premises. In addition, JEG attached to their motion the affidavit of Dr. Alan Leff, the Head of the Pulmonary and Critical Care Medicine Section of the University of Chicago. According to this affidavit, Dr. Leff reviewed the Alpine Valley Injury Report, the ambulance report, the coroner's report and the autopsy report for Patricia Leane. Based upon these documents, Dr. Leff opined that Patricia suffered a spontaneous tension pneumothorax. *fn3 According to Dr. Leff, the only effective treatment for this condition is the insertion of a chest tube or large bore needle into the chest cavity to release the trapped air, a procedure which must be performed within a few minutes of the pneumothorax by a qualified and trained physician. Thus, JEG argued, even if they had some duty to provide medical assistance, they had no obligation to provide the type of advanced medical care that would have been necessary in this instance.

In response Leane argued that, under the Restatement of Torts, Second, Section 314A, which has been adopted by Illinois, JEG had a duty to provide first aid to its business invitees, and that they breached that duty by failing to provide emergency medical assistance to their patron, who had a reasonably foreseeable medical emergency. In support of this position, Leane attached the affidavit of Dr. Stanley Zydlo, the chief of emergency medicine at Northwest Community Hospital and project director of the Northwest Suburban E.M.S. System. Dr. Zydlo stated that he had reviewed the same documents relied upon by Dr. Leff, in addition to a summary of the unsworn statements of individuals with Patricia when she suffered the attack. *fn4 Dr. Zydlo concurred with Dr. Leff's diagnosis that Patricia suffered a tension pneumothorax and he also agreed that the proper treatment would be needle decompression. However, he opined that the needle decompression procedure could be performed by a trained paramedic. Dr. Zydlo further opined that when people are gathered at large scale events, such as the outdoor concerts at Alpine, it is reasonably foreseeable that persons will suffer acute respiratory distress brought on by asthma and that facilities such as Alpine should provide adequate emergency first aid stations, accessible within minutes, and staffed by trained paramedics who can perform the needle decompression treatment.

Subsequently, Leane filed the additional affidavit of Chet Lloyd, a "certified safety professional specializing in risk control and crisis management for sports and entertainment facilities." The affidavit stated that Lloyd had conducted an investigation of the safety and emergency preparedness at Alpine Valley and compiled a report, which was attached to the affidavit. Lloyd expressed the opinion that, based upon statistical data, it is probable that a sports or entertainment facility will experience one medical emergency per hour for every 10-20,000 patrons in attendance. In light of that statistical probability, he expressed the opinion that sports and entertainment facilities should provide a number of emergency stations, easily accessible, and staffed by trained and certified personnel acting under the direction of a physician.

At the hearing on the motion to dismiss held June 8, 1993, plaintiff's counsel indicated that when Patricia began to experience her respiratory attack she sought first aid. Patricia was told that paramedics present at Alpine Valley wouldn't come to her. Instead, she was directed to go to one of Alpine Valley's first aid stations where paramedics were located. Patricia, accompanied by some friends, made their way to a first aid station. But the medical assistance she received at the aid station was inadequate and they were unable to save her.

Considering this information along with the complaint, motions and affidavits, the trial court dismissed the complaint against JEG, finding that JEG owed no duty to provide Patricia Leane with the advanced medical care that she required. Leane's counsel made an oral motion that the dismissal be without prejudice so that an amended complaint might be filed "to allege that defendant knew or should have known through its agents, servants or employees, that plaintiff Patricia Leane was ill and was in need of first aid and that no first aid whatsoever was provided to her." The trial court denied the oral motion, finding that the law doesn't require a landowner to provide first aid, but merely take reasonable steps to see that medical attention is obtained or that someone competent has taken charge of the situation. Since the evidence indicated that Patricia was accompanied by friends who were assisting her, Alpine had no further duty to assist.

Leane appeals and asks this court to find that the trial court erred in dismissing the complaint against JEG. Leane declares that it is an issue of first impression in Illinois whether a possessor of land owes a business invitee a duty to provide medical care and the degree of care that must be provided. Leane urges this court to find that JEG owed a duty to its business invitees to provide "adequate emergency medical facilities," defining "adequate emergency medical facilities" as that medical assistance necessary in light of the circumstances and nature of the business conducted. In this case, Leane argues that "adequate emergency medical facilities" should include advanced medical assistance because, given the large number of persons attending concerts at the rural amphitheater, it was reasonably foreseeable (and statistically probable) that someone would experience a medical emergency and that the magnitude of the burden on Alpine would not be great considering the fact that Alpine already had in place "skeletal emergency medical facilities." In addition, Leane argues that, to the extent that the issue of proximate cause is raised by Dr. Leff's affidavit, that issue should be decided in its favor since Dr. Zydlo's affidavit indicated that trained paramedics (rather than physicians) could have performed the needle decompression procedure that was necessary in this case.

Finally, Leane argues that the trial court erred in dismissing the cause of action with prejudice. Leane claims that his counsel proposed an amendment to the complaint that JEG, having voluntarily assumed the duty to provide medical assistance, breached that duty by providing inadequate facilities and by failing to provide the care necessary within a reasonable time after Patricia experienced her acute respiratory attack. Leane claims that ...

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