The opinion of the court was delivered by: Justice Harrison
The issue in this case is whether the owner of a commercial bathing beach had a duty to protect one of its adult patrons, who was an experienced swimmer, from the risks associated with diving into the water from the shoreline near a submerged and unmarked pipe that was not visible from the surface. The circuit court held that the owner owed no such duty and entered summary judgment in the owner's favor. The appellate court affirmed with one Justice Dissenting. No. 3-97-0159 (unpublished order under Supreme Court Rule 23). We granted leave to appeal (166 Ill. 2d R. 315) and now reverse and remand for further proceedings.
The events which gave rise to this litigation took place on June 16, 1993, when Jonathan Jackson went swimming at Timberview Lake. Timberview is a "public bathing beach" within the meaning of the Swimming Pool and Bathing Beach Act (210 ILCS 125/1 et seq. (West 1992)). It is owned and operated by defendant, TLC Associates, Inc. (TLC). On the date in question, TLC possessed a valid license from the Illinois Department of Public Health to operate the facility.
Timberview Lake is a relatively small body of water. It is more a pond than a lake and is man-made. Its shape resembles an elongated triangle with rounded edges. A buoyed rope separates its narrower upper portion from its wider lower portion. A sandy beach runs along the narrow end, and the water there is shallowest.
As one proceeds through the sandy beach area and past the buoyed rope, the depth of the lake increases. The water eventually becomes deep enough to accommodate two platforms, one of which is equipped with a diving board. Near the rope, however, the drop off is negligible. The area adjacent to the shoreline also remains relatively shallow. Even as far out as 16 feet the water is only 44 inches deep.
Throughout the portion of the lake beyond the buoyed rope, referred to by the parties as the "deep end," the lake bottom is composed of silt. This gives the water a murky appearance and makes it impossible to see beneath the surface. A swimmer standing on the shore has no way to gauge the lake's depth or detect the presence of any submerged obstructions. Jonathan Jackson was a 19-year-old adult and an experienced swimmer. He had been to Timberview on previous occasions and had recently witnessed a Timberview employee dive into the lake from the shoreline on the "deep" end of the lake. When Jonathan arrived at the lake on the day in question, he attempted to do the same thing. After paying his admission fee and proceeding to a concrete shelter next to the lake, Jonathan ran to a point on the shoreline a few feet past the buoyed rope on the "deep" side of the lake. He extended his arms and dove in. A witness described the dive as "just kind of a belly flop deal."
The same witness testified in his deposition that during previous visits Jonathan had executed similar dives from the shoreline without incident. This time, Jonathan was not so fortunate. When he surfaced from the dive he called for help and had to be pulled to shore by other swimmers. He was transported to the hospital, where examination revealed that he had sustained cervical and thoracic spine fractures resulting in quadriplegia. He later died from complications related to those injuries.
Barbara Jackson, Jonathan's mother and the administrator of his estate, subsequently brought this action against TLC in the circuit court of McDonough County to recover damages for her son's injuries. In her complaint, Jackson alleged that TLC had been negligent in the way it maintained the lake; in not providing lifeguards; in failing to adequately warn swimmers that they should not dive into or enter the water in areas where hidden hazards might be present; and in "allow[ing] a dangerous obstruction to remain in an area where persons were allowed to swim and dive, when [TLC] knew or should have known of the dangerous obstruction."
Jackson's theory of the case was that her son's injuries were caused when he hit his head on a submerged section of plastic pipe used by TLC to adjust the level of the water. The pipe was black in color and approximately two inches in diameter. It was not anchored down, its location was variable, and it did not always remain in the water. Sometimes the pipe was laid across the grass on the shoreline. On the day in question, however, it extended into the "deep" end of the lake from the buoy post near the point where Jonathan dove into the water. A witness present at the scene reported that the pipe ran along the shore for a short distance, then entered the water. It disappeared from view a few feet to the left of where Jonathan made his dive. An inspector with the Illinois Department of Public Health testified in his deposition that if the pipe were in place in the area of Jonathan's accident, as Jackson claims it was, it would have been a likely cause of his injuries.
After conducting discovery, TLC moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1992)). As grounds for its motion, the company argued that it was entitled to judgment as a matter of law because it had no duty to prevent Jonathan from diving into the water and had no duty to warn him of the risk attendant to making such a dive. No duty was owed, in the company's view, because Jonathan was an experienced, adult swimmer who should have known better than to dive into murky water. According to TLC, the danger was open and obvious.
Following a hearing, the circuit court granted TLC's motion and entered summary judgment in favor of the company and against Jackson. As indicated at the outset of this Disposition, the appellate court affirmed, with one Justice Dissenting. The appellate court reasoned that TLC owed no duty to Jonathan because, under this court's decision in Bucheleres v. Chicago Park District, 171 Ill. 2d 435 (1996), an adult is expected to appreciate the risks of diving into a body of water that is murky and of uncertain depth, as the water here was. Although the court recognized that the existence of such an open and obvious danger is not an automatic bar to the finding of a legal duty on the part of the defendant who owns, operates or controls the property, the court held that this case did not present a situation where the landowner should have anticipated the harm despite its open and obvious nature. The court further held, in the alternative, that Jackson had failed to establish that her son had actually come into physical contact with a submerged pipe.
In reviewing the appellate court's judgment, we begin by noting that Jackson was not, in fact, required to establish the cause of her son's injuries in order to turn aside TLC's summary judgment motion. At the summary judgment stage, plaintiffs are not required to prove their cases. Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996). The purpose of summary judgment is not to try a question of fact, but simply to determine whether one exists. Watkins v. Schmitt, 172 Ill. 2d 193, 203 (1996). A motion for summary judgment should only be granted when the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992).
Because summary judgment is a drastic means of disposing of litigation, the court has a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment should not be allowed unless the moving party's right to judgment is clear and free from doubt. In re Estate of Hoover, 155 Ill. 2d 402, 410 (1993). Accordingly, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact. Espinoza, 165 Ill. 2d at 114. Our review of an order granting summary judgment is de novo. Espinoza, 165 Ill. 2d at 113.
In the case before us today, there is a genuine issue of fact as to how Jonathan sustained his injuries. He undoubtedly hit his head on something when he dove into the lake. No other explanation can account for the severity of the damage to his spine. The real dispute concerns what exactly it was that he hit. It is possible that he merely struck the lake's bottom. At this stage of the proceedings, however, that is by no means certain. The reported presence of the submerged plastic pipe and Jonathan's proximity to that pipe when he entered the water support Jackson's claim that the pipe was responsible for what ...