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02/08/95 DAVID SMITH v. CHICAGO PARK DISTRICT

February 8, 1995

DAVID SMITH, PLAINTIFF-APPELLANT,
v.
CHICAGO PARK DISTRICT, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JUDITH COHEN, JUDGE PRESIDING.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., concurs. Greiman, P.j., dissents.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiff, David Smith, filed an action against defendant, the Chicago Park District, to recover damages for injuries he sustained when he dove into Lake Michigan and struck his head on a submerged object. Defendant filed a motion for summary judgment which was granted, and plaintiff has appealed. We reverse and remand.

There are three issues presented: (1) whether the trial court erred in striking the two affidavits of plaintiff's expert witness; (2) whether the alleged facts are sufficient to establish a duty to warn plaintiff of an unreasonable risk of harm; and (3) whether the alleged facts are sufficient to establish that defendant breached its duty to warn.

In his second amended complaint, plaintiff alleged that on August 3, 1985, he was injured when he dove into the lake from a rock formation bordering the lake at the Foster Avenue Beach in Chicago, Illinois. He also alleged that defendant committed one or more of the following wilful and wanton acts:

a) Maintained said swimming area with utter indifference to, or conscious disregard for the safety of the plaintiff;

b) Supervised said swimming area with utter indifference to or conscious disregard for the safety of the plaintiff;

c) Did not warn of a dangerous condition, to wit: That it was not safe to dive into the water off of the rocky steps approximately 15 to 20 feet North of the sandy portion of the beach with utter indifference to, or conscious disregard for the safety of the plaintiff;

d) Did not correct or remove the dangerous condition when they knew of its danger to persons in the swimming area with utter indifference to, or conscious disregard for the safety of the plaintiff.

During a deposition, plaintiff testified that on August 3, 1985, he and a friend went to the Foster Avenue Beach around 10 a.m. Plaintiff stated that when he and his friend arrived at the beach, they stopped near some large rock formations that bordered the lake about 50 feet north of the sandy part of the beach. There were about 20 other people frolicking on the rock formations, and many of them were jumping and diving into the lake. Also, there was a metal ladder built into one of the rocks, which enabled people to climb out of the water and back onto the top of the rock.

Plaintiff testified that after he dove into the water, he struck his head on a submerged object and suffered severe injuries. Plaintiff also testified that he had not checked the depth of the water prior to his dive. He merely looked at the surface of the water and believed that the water was deep enough for safe diving. Plaintiff previously dove into the water from this same location without incident. Also, prior to diving, plaintiff had seen someone else diving into the water at this location, without incident.

In addition, plaintiff testified that although there were two lifeguards on the sandy part of the beach, there were no lifeguards near the rock formations. He also testified that there were not any "No Diving" notices stenciled on the rocks or posted signs near the rocks. Defendant, however, maintained that there were warning signs stenciled on the rocks and warning signs posted on poles which warned the public of the dangers of diving into the water around the rock formations.

After the plaintiff's deposition was taken, defendant filed a motion for summary judgment. Plaintiff submitted Dr. Alan Caskey's affidavit in opposition to the motion. Dr. Caskey has a Ph.D. in recreation and park administration, and has expertise in the design and maintenance of lakefront recreational areas of the kind that is at issue in this case.

Defendant filed a motion to strike Dr. Caskey's affidavit. The trial court granted the motion and plaintiff filed a supplemental affidavit by Dr. Caskey. Defendant then filed a motion to strike Dr. Caskey's supplemental affidavit. The trial court ruled that there was virtually no difference between Dr. Caskey's original and supplemental affidavits, and granted defendant's motion to strike the supplemental affidavit. The trial court then granted defendant's motion for summary judgment on the basis that defendant did not owe plaintiff a duty to warn.

We first address whether the trial court erred in striking the affidavits of Dr. Caskey. In his original affidavit, Dr. Caskey made the following statements:

5. That based on my review of plaintiff's deposition, and my knowledge and experience concerning the area in question, it is my opinion that the plaintiff struck a submerged object and not the natural bottom of the lake.

6. That there are nationally recognized standards in the operation of recreational areas ...


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