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04/18/96 MICHAEL BUCHELERES ET AL. v. CHICAGO PARK

April 18, 1996

MICHAEL BUCHELERES ET AL., APPELLEES,
v.
THE CHICAGO PARK DISTRICT, APPELLANT.--DAVID SMITH, APPELLEE, V. THE CHICAGO PARK DISTRICT, APPELLANT.



The Honorable Justice McMORROW delivered the opinion of the court: Justice Harrison, dissenting:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

These consolidated appeals present the issue of whether defendant, the Chicago Park District (Park District), had a duty to warn against or protect plaintiffs from the risks associated with diving off of concrete seawalls into Lake Michigan. In both cases, the circuit court of Cook County granted the Park District summary judgment on the basis that it did not have a duty to warn plaintiffs of the dangers involved in diving into a natural body of water because such danger was open and obvious. In each case, with one justice dissenting, the same appellate panel reversed and remanded for trial. In Bucheleres, 269 Ill. App. 3d 791, the appellate court majority held that summary judgment was improper because there existed a question of fact regarding whether defendant adequately warned plaintiffs of the risks of diving into shallow water. In Smith, 269 Ill. App. 3d 812, 207 Ill. Dec. 243, 646 N.E.2d 1330, the appellate court majority held that if defendant knew or should have known of the presence of submerged objects in the water into which plaintiff dived, and failed to warn against such danger, a cause of action for willful and wanton conduct would be stated and governmental tort immunity would not apply. We granted defendants' petitions for leave to appeal in both cases (145 Ill. 2d R. 315(c)) and consolidated them.

BACKGROUND

Bucheleres, No. 78760

The record contains pleadings and discovery material that may be summarized as follows. On May 27, 1988, one day before the official opening of the Chicago beaches, Michael Bucheleres arrived at the Oak Street Beach at approximately 11 a.m. No lifeguards were on duty. Many people had congregated at the beach because of the warm weather. Bucheleres proceeded just north of Oak Street Beach toward Division Street and joined a group of people who were playing a game next to a concrete seawall commonly called the "Division Ledge." After awhile Bucheleres left the game, ran approximately 15 feet, and dived off the seawall head first into the lake with his arms extended over his head. He struck his head on the sand bottom and then floated to the surface, unable to move his arms or legs. Others present at the Division Ledge helped pull Bucheleres out of the water. As a result of his injury, Bucheleres was diagnosed a quadriplegic.

Bucheleres filed suit against the Park District in its capacity as the entity that owns, operates, and maintains the lakefront beach areas. Plaintiff claimed that the Park District failed to adequately warn against and protect persons from the dangers of diving from the Division Ledge into shallow water. Specifically, he claimed that in the months preceding his accident, defendant had ordered that a large quantity of sand be added to the Oak Street Beach and Division Ledge area to compensate for sand erosion that had occurred during the winter. According to Bucheleres, such placement of sand effectively rendered the water level shallower than it had been previously and thereby triggered a duty upon the Park District to ensure that swimmers would not attempt to dive from the Division Ledge into Lake Michigan. Bucheleres claimed that defendant was aware of the popularity of the Division Ledge as a gathering place and was also aware that persons had, in the past, dived from the Ledge into the lake and sustained injuries because of the shallowness of the water.

The Park District moved for summary judgment contending that it owed Bucheleres no duty to warn or protect because of the open and obvious dangers of diving into Lake Michigan without first ascertaining the depth of the water. Therefore, defendant argued, the law did not require defendant to anticipate or guard against plaintiff's injury.

The trial court considered a substantial number of depositions and affidavits from a variety of witnesses regarding the incident itself, the existence and placement of warning signs in the area, and the fluctuating level of the lake water over the years. Evidence indicated that sand was brought to the Division Ledge and Oak Street Beach area, as part of the Park District's on-going shoreline protection and beach rehabilitation plan, to replenish sand lost to erosion and water currents. After a severe winter storm in 1987 washed away the sand from the southern edge of the Division Ledge and caused an adjacent concrete promenade to collapse, an independent contractor was hired to repair the damaged promenade and fill the washed out area with sand. Between April 19 and 22, 1988, the Park District graded the sand toward the north at Oak Street Beach to reclaim portions of the beach that had been eroded or pushed south during the winter. Other evidence revealed that in addition to changes in the level of the sand bottom caused by storms and erosion, the surface level of the lake dropped naturally by more than one foot during the months preceding Bucheleres' injury. The evidence further indicated that the water adjoining the seawall of the Division Ledge historically was shallow, often only three feet deep. The Park District was aware of some diving activity in the Division Ledge area and knew that some patrons of the beach had bumped their heads or scraped the bottom, but according to the Park District's information, no one previously had sustained as severe a fracture as had Bucheleres.

Michael Bucheleres, aged 21 at the time of his injury, was an experienced swimmer and diver who learned to swim as a young child and swam competitively until he entered high school. He had visited Oak Street Beach approximately 50 times before the date of his injury. He said he had dived into the Lake from the Division Ledge "many times."

It is undisputed in the record that the Park District took measures to prevent users of the beach from attempting hazardous diving into the shallow water off the Division Ledge. Since at least 1983, the Park District has instructed its lifeguards to issue oral warnings to beach patrons. In addition, defendant has long posted signs prohibiting diving from the Division Ledge. Until 1984, these signs were painted in yellow block letters on the surface of the Division Ledge and read "No Diving" or "Danger No Diving." Since 1985, the Park District has used the international symbol for no diving, stenciling signs every 25 feet along the Ledge. Although Bucheleres and another witness testified that they did not recall seeing any "no diving" signs on the Ledge on May 27, 1988, other witnesses, including Betty Bucheleres Bivans, co-plaintiff, testified that signs painted on the Ledge remained legible, although faded, on and after the date of the accident.

The trial court granted summary judgment to the Park District, holding, "The open and obvious danger posed by diving into the unchartered waters under the circumstances of this case must control this court's determination. The peril of the lake bottom should have been anticipated." The court held that the Park District's grading of the beach area with added sand did not change the result because plaintiff was "swimming in the lake at that location for the first time in this season [and failed to check its depth]. The doctrine of open and obvious danger posed by a body of water with a sandy beach with shifts, with currents and disturbances *** is [not] vitiated by the fact that the Park District graded the beach and added sand which shifted in the waters thereby affecting the depth from the past year. *** It is a large open lake, there are constantly shifting sands from currents. *** It cannot be said that the lake presented perils that the plaintiff did not appreciate."

The appellate panel reversed the trial court's entry of summary judgment, reasoning that the Park District had a duty to exercise reasonable care to warn beach patrons of the risks of diving into shallow water notwithstanding that the risk presented by water generally is considered "open and obvious." The appellate court remanded the cause for trial, stating, "There is a question of material fact as to whether signs prohibiting diving or warning of the dangers of diving in the area of the Division Ledge were sufficient at the time of the occurrence." 269 Ill. App. 3d at 795.

Smith, No. 78790

In August 1985, David Smith and a friend went to Foster Avenue Beach, which is owned, operated, and maintained by the Park District. Approximately 50 feet north of the sand beach is a seawall with rocks or molded slabs, "like platforms." This seawall area is also maintained by the Park District, to the extent of removing litter and debris on a periodic basis. On the day of his accident, Smith, who was 27 years old, went to the seawall area north of the beach where approximately 20 people were jumping, diving, and swimming. Smith, an experienced swimmer, said he had dived from this area many times without mishap. He noticed two lifeguards at the sandy area but did not see any at the rocky area. The Park District represented that there was a "No Diving" sign posted near the rocks and a "No Diving" notice stenciled on the rocks; however, Smith claimed that he did not see such notices.

Smith estimated that the water was "very deep" where he dived, but he did not attempt to ascertain the actual depth before entering the water. Shortly after his arrival at the rocky area north of the sand beach, Smith executed a "flat," or horizontal-type, dive into the water. Immediately, he felt as though his head had been "hit by a sledgehammer." He did not know what he might have hit and at first admitted he did not know whether he had hit the lake bottom, but then added that he "knew for a fact [he] didn't hit the bottom because [he] didn't dive that deep." After floating to the surface, he was able to swim back to the rocks with his friend's assistance. They left the water by climbing a metal ladder that was attached to the seawall. Smith sustained a cervical fracture but was not permanently injured as a result of the accident. Although Smith's complaint alleges that he hit a submerged rock, the object Smith encountered was never precisely identified or described during discovery.

The Park District filed an answer to the complaint and raised the affirmative defense of statutory governmental tort immunity under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-106 (West 1992)). Smith amended his complaint to assert willful and wanton conduct on the part of defendant, to wit: (1) failing to maintain the swimming area at the Foster Avenue Beach; (2) providing inadequate supervision over the swimming area; (3) failing to provide warning of a dangerous condition, e.g., that it was unsafe to dive into the water from the rocks, and (4) failing to "correct or remove the dangerous condition when [it] knew of its danger to persons in the swimming area."

After conducting discovery, the Park District moved for summary judgment, arguing that it owed Smith no duty on the date of the accident because the risk of injury resulting from a dive into water of uncertain depth was open and obvious. Further, the Park District argued that it was immune from liability under the Tort Immunity Act and that there was no evidence to support the charge that its conduct was willful and wanton.

In opposition to the motion for summary judgment, Smith submitted the affidavit and supplemental affidavit of Alan Caskey, who holds a Ph.D. in recreation and park administration. Dr. Caskey was represented to be an expert in the design and maintenance of lakefront areas. Dr. Caskey gave his opinion that plaintiff had struck his head on a submerged object rather than the lake bottom, and stated that there are "nationally recognized standards" in the operation of recreational areas such as the one in question. Such standards, according to Dr. Caskey, obligate park districts to "either survey the area where diving occurs to determine that there are no submerged hazards, or *** effectively prohibit diving." Dr. Caskey concluded in his supplemental affidavit that "an adult of reasonable intelligence, seeing the beach, the lifeguards, the rocky wall, the ladders along the wall, with knowledge that the lake is very deep at this location, and with knowledge of a long history of diving off said wall, would not expect there to be submerged rocks that would pose a serious risk of serious personal injury."

The Park District moved to strike both the original and supplemental affidavits of Dr. Caskey pursuant to Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)). The Park District challenged the witness' qualifications as an expert, the relevance of his opinion to the issue of legal duty, and the adequacy of the foundation upon which the conclusions were based. The trial court struck the affidavits, finding them purely conjectural and not in conformance with the requirements of Rule 191. Based on the law and the competent evidence before it, the court ruled that there was "an absence of any showing upon which [the court] could infer the existence of duty." The court held that the Park District had a clear right to summary judgment, irrespective of the expert's affidavits.

On appeal, the appellate court reversed, holding that the trial court erred in striking the expert's affidavit and further holding that the Tort Immunity Act did not bar plaintiff's cause of action. The court ruled that if the Park District "knew of the submerged object or failed to discover it through recklessness or carelessness when it could have been discovered by the exercise of ordinary care, and defendant did not adequately warn plaintiff of the danger, then defendant would be guilty of wilful and wanton conduct. Thus, assuming that the facts alleged are true, defendant had a duty to adequately warn plaintiff of the danger." 269 Ill. App. 3d at 818.

We granted the Park District's petition for leave to appeal in both cases. We also allowed filing of a brief by amicus curiae Illinois Trial Lawyers Association on behalf of plaintiffs. On behalf of defendants, we allowed the amicus curiae brief of the Illinois Association of Defense Trial Counsel and the joint amicus curiae brief of the Illinois Association of School Boards, the Illinois Association of Park Districts, the Institute for Local Governmental Law, the Illinois Municipal League and the Illinois Governmental Association of Pools.

ANALYSIS

Duty is determined by asking "whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff." Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990). Whether one person owes another a duty of reasonable care under a particular set of circumstances is an issue of law for the court (e.g., Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 170 Ill. Dec. 418, 592 N.E.2d 1098 (1992)) and is subject to a de novo standard of review. In the consolidated cases at bar, the Park District requests this court to reaffirm long-standing principles which recognize that owners and occupiers of land generally owe no legal duty to take precautions or warn against risks from "open or obvious" conditions present on the land. See, e.g., Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326, 22 Ill. Dec. 701, 383 N.E.2d 177 (1978); Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 447-48, 152 Ill. Dec. 552, 566 N.E.2d 239 (1990). Specifically, the Park District argues that it owes no duty to protect experienced, adult swimmers who injure themselves by diving into a natural body of water without first learning the water's depth and the ...


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