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12/21/94 LAWRENCE TORF AND LOIS TORF v.

December 21, 1994

LAWRENCE TORF AND LOIS TORF, INDIV. AND AS SPECIAL CO-ADM'RS OF THE ESTATE OF RYAN TORF, DECEASED, PLAINTIFF-APPELLANTS,
v.
COMMONWEALTH EDISON AND THE CITY OF WAUKEGAN, DEFENDANTS-APPELLEES. RUTH ENDICOTT, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF DAVIS ENDICOTT, DECEASED, PLAINTIFFS-APPELLANTS, V. COMMONWEALTH EDISON AND THE CITY OF WAUKEGAN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 92-L-899. No. 93-L-1457. Honorable William D. Block, Judge, Presiding.

The Honorable Justice Bowman delivered the opinion of the court: Doyle and Colwell, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

In separate actions the plaintiffs sued Commonwealth Edison (Edison) and the City of Waukegan (the City). Each complaint alleged that plaintiff's decedent had drowned in Lake Michigan after being unable to escape swirling currents created by Commonwealth Edison's generating plant. In each cause, the trial court granted defendants' motions for judgment on the pleadings. Plaintiffs appealed, contending that the court erred in finding that the risk of drowning in Lake Michigan was an open and obvious danger as a matter of law. On its own motion, this court consolidated the appeals.

In cause No. 2-93-1467, the plaintiffs are Lawrence Torf and Lois Torf, individually and as the special co-administrators of the estate of their deceased son, Ryan Torf. Their complaint alleges that on July 14, 1991, Ryan Torf, a minor, drowned in a beach area of the City near Edison's power plant.

In cause No. 2-94-0108, the plaintiff is Ruth Endicott, individually and as the special administrator of the estate of her deceased husband, David Endicott. Her complaint alleges that on March 10, 1991, her husband drowned while swimming in the beach area near the power plant.

In other respects, the allegations of the complaints are similar if not identical. The complaints allege that defendant Edison owned and operated a power plant, pier, and beach area in the City. The City jointly maintained and controlled the beach area with Edison.

To operate the plant, Edison drew in lake water through an intake channel. It then discharged the water back into the lake through a separate channel. Edison and the City knew that fishermen used the pier, beach area, and waterways by the plant. In fact, Edison and the City encouraged such use by posting a sign advertising, "GOOD FISHING! This Recreational Facility is provided and maintained for public use by COMMONWEALTH EDISON COMPANY in cooperation with the City of Waukegan."

According to plaintiffs, Edison and the City also knew that the power plant's "torrential discharge" of warm water into the colder waters of Lake Michigan created "severely [sic ], strong, dangerous, and turbulent currents including but not limited to dangerous undercurrents." These currents had caused drownings in July 1988, August 1988, and September 1990, and had caused a boat to capsize in September 1988. The complaint alleged that Edison and the City were aware of these drownings.

The complaints further allege that in spite of this knowledge Edison and the City continued to solicit public use of the shoreline for recreational purposes. However, neither defendant warned the public about the dangerous conditions caused by the currents, and neither took steps to rectify the conditions in the area.

In each case, defendants filed motions for judgment on the pleadings, contending that the danger of drowning in Lake Michigan was open and obvious. (In No. 2-94-0108, Edison's motion was styled a motion to strike pursuant to section 2-615(a) of the Code of Civil Procedure (735 ILCS 5/2-615(a) (West 1992)). Under these facts, the distinction is of no practical significance. The issue in either case is the same.) The trial court agreed and granted the motions. Plaintiffs perfected their appeals.

In both consolidated cases, plaintiffs contend that the court erroneously applied the open and obvious danger doctrine to their cases. Plaintiffs acknowledge that generally the danger of drowning in a body of water is considered an open and obvious risk which both minors and adults should be expected to be able to appreciate and avoid. (See Cope v. Doe (1984), 102 Ill. 2d 278, 80 Ill. Dec. 40, 464 N.E.2d 1023; Lerma v. Rockford Blacktop Construction Co. (1993), 247 Ill. App. 3d 567.) Plaintiffs maintain, however, that the rule does not apply in this case because Edison intentionally increased the risk to persons entering the lake. Plaintiffs contend that Edison's discharge of warm water into the lake created strong currents which in turn increased the risk beyond that which a person swimming in the lake would normally be expected to encounter.

We note that most of the reported cases deal with the duty owed to a child. Although one of the decedents in these consolidated cases was an adult, a similar analysis applied. Certainly, if a risk is open and obvious to a child, it should be open and obvious to an adult as well.

Defendants respond that the danger of being trapped by dangerous and unknown currents is precisely the reason that water is considered to be an open and obvious danger. Defendants seek to distinguish plaintiffs' cases, which primarily involve "foreign objects," such as boulders, tree stumps or sunken barges, submerged in the water. According to defendants, the risk in this case, dangerous currents, is a risk inherent in the nature of the water itself ...


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