Appeal from the Circuit Court of Winnebago County. No. 94--L--392 Honorable Galyn W. Moehring, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Modified Upon Denial of Rehearing
The plaintiffs, Rickie Bier (hereinafter, the plaintiff) and Kathy Bier (collectively, the plaintiffs), filed a two-count complaint against the defendant, Leanna Lakeside Property Association, seeking damages for personal injuries and loss of consortium sustained by the plaintiffs when Rickie fell from a rope swing into the defendant's lake. The trial court dismissed the plaintiffs' complaint, finding that the rope swing was an open and obvious danger, and, therefore, the defendant did not owe the plaintiff a duty as a matter of law. The plaintiffs appeal.
PLAINTIFFS' SECOND AMENDED COMPLAINT
The plaintiffs' second amended complaint alleged that the defendant was an association of five or more homeowners that owned, operated, maintained, and controlled a lake and bathing beach. According to the complaint, the defendant erected and maintained a ladder and rope swing *fn1 that were connected to a tree at its beach adjacent to the lake and that it intended swimmers to use to swing out over the lake and fall or dive into it. While lawfully on the property, the plaintiff used the rope swing and fell into the lake, hitting his head on the lake bottom. As a result, he sustained a fractured neck and was rendered a quadriplegic.
The second amended complaint further alleged that the defendant was negligent in one or more of the following respects: (1) inviting swimmers to swing from the rope into the lake when it was not safe to do so; (2) erecting and maintaining the rope swing over water it knew or should have known was too shallow for diving or falling into the lake; (3) providing a "diving facility" over water that was shallower than the minimum depth required by the Illinois Swimming Pool and Bathing Beach Act (Beach Act) (210 ILCS 125/5, 13 (West 1994); 77 Ill. Adm. Code §§820.500(b)(1), (b)(2) (1996) (now, as amended and renumbered, at 77 Ill. Adm. Code §§820.400(b)(2), (3)(A) (eff. May 15, 1998))); (4) failing to identify water of less than five feet in depth by lines and buoys contrary to and in violation of the Beach Act (210 ILCS 125/5, 13 (West 1994); 77 Ill. Adm. Code §820.500(b)(3) (1995) (now, as amended and renumbered, at 77 Ill. Adm. Code §820.400(b)(4) (eff. May 15, 1998))); and (5) contrary to and in violation of section 4 of the Beach Act (210 ILCS 125/4 (West 1994)), failing to apply for and obtain a license to operate the lake as a bathing beach, the application for which would have required an inspection by officials of the State of Illinois who would have required the removal of the rope swing as a condition of a license being issued.
The second amended complaint also alleged that the plaintiff failed to appreciate the risk posed by the rope swing because he had observed others use the swing without injury prior to his use. The plaintiff further stated in his complaint that the defendant should have anticipated the harm since it had erected and invited people to use the rope swing, and the plaintiff would not have realized the danger presented because it appeared reasonable that the advantages to using it outweighed the apparent risk.
The deposition testimony in the record reveals that the plaintiff was present at the defendant's beach on the date of the accident because he was invited to a party at the beach by a fellow teacher, Daryl Mertz. Mertz was a shareholder of the defendant and owned a home on the lake. The lake and beach were private and were for members only. However, members were allowed to invite others to the lake and beach. Members of the lake paid three different types of dues in exchange for various privileges at the lake, including the right to use the lake.
The ladder and rope swing that the plaintiff used on May 30, 1994, the day of his injury, had been there since at least 1987. Several members of the defendant association acknowledged that they had seen the rope and ladder on prior occasions, although nobody knew who actually placed the ropes and ladder there. Every spring, members of the association would participate in a spring cleanup at the lake. During those cleanups, the rope and ladder were present. There was nobody on the defendant's board of directors who had the responsibility of maintaining the rope swing, but at least one of the members of the board testified in his deposition that the maintenance of the ladder and ropes fell under the authority of the board of directors. Furthermore, the board had never adopted any rules or regulations governing the use of the rope swing. Marika Mertz, one of the members of the defendant's board of directors, testified in her deposition that on the day of the plaintiff's injury she had used the rope to swing out and drop into the lake.
On the day of the plaintiff's accident, the persons using the rope swing were falling into the water from a height of 6 to 20 feet. The depth of the water in that location was between 4½ and 6 feet deep.
The plaintiff testified in his deposition that he was an experienced swimmer and that five or six people had used the rope swing before he did on the day in question. On his first swing, he had used the longer of two ropes that hung from the tree and did not elevate very high. According to the plaintiff, he did not attempt a back flip or try to land head first. He noted that he landed on his butt.
The plaintiff further testified that he sustained his injury on his second attempt at using the rope. For his second swing, the plaintiff used the shorter of the two ropes. According to the plaintiff, he lost his grip as he was swinging out over the lake and fell off the rope. As he was falling, he did not know if he was oriented up or down. He noted that he was not trying to do a back flip and did not intend to land in the water head first. He also noted that he had intended to complete his swing and land farther out in the water than he did.
Roger Ruden, the regional engineer for the Illinois Department of Public Health (the Department), testified that prior to the plaintiff's injury the defendant had not applied for a license to operate its beach as required by the Beach Act. After the plaintiff's injury, the Department contacted the defendant association and requested that the defendant obtain a license. On June 19, 1995, the Department inspected the beach and a license was subsequently issued. However, the defendant had removed the rope swings prior to the June 19, 1995, inspection. To obtain its license, the defendant was required to place signs at the beach describing safe markers between wading, swimming, and diving areas as an indication of the limits of safe bathing.
Ruden further testified that in August 1980 the Department published a document entitled "Requirements for Bathing Beaches," which stated, in part, "Rope swings are prohibited unless the water depth required in Item 8 is provided, including 12 feet from any possible point of release." Item 8 sets forth the minimum water depths for diving facilities as listed in the Illinois Swimming Pool and Bathing Beach Code (Beach Code) (77 Ill. Adm. Code §820 et seq. (1996)), requiring a minimum depth of 9½ feet for devices 0 to half a meter above water. According to Ruden, the Department had determined that rope swings were dangerous and had interpreted them as being diving facilities for purposes of the Code and Act. Ruden noted that the highest release point of a rope swing would be the height used to calculate the depth of water for purposes of compliance with the Department's requirements for diving facilities. Since it would be nearly impossible to envision a rope swing that could comply with the requirements for a diving facility, rope swings were essentially prohibited. He also noted that he had never seen a license granted to a bathing beach that had a rope swing. Ruden stated that if one of the Department's inspectors had discovered the rope swing at issue in this case, the defendant would have been asked to remove the swing and would not have been issued a license until it was removed. Furthermore, if the defendant continued to operate the beach without a license and with a rope swing, the Department would have pursued an enforcement action against the defendant to close the beach for operating a beach without a license. Ruden explained that its power to do so was derived from its interpretation that rope swings constituted an immediate danger to health and safety pursuant to section 21 of the Beach Act (210 ILCS 125/21 (West 1994)). Ruden acknowledged that the rope swing constituted an open and obvious danger.
In October 1994, the plaintiffs filed a two-count complaint against the defendant. Count I alleged common-law negligence and count II alleged loss of consortium on behalf of plaintiff Kathy Bier. The defendant filed a motion to dismiss the complaint pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 1996)). The trial court granted the motion to dismiss, finding that the defendant owed no duty to the plaintiffs on the basis that the alleged danger was an open and obvious condition. The plaintiffs were allowed to replead and eventually filed a second amended complaint alleging common-law negligence and violations of the Beach Act and Beach Code (210 ILCS 125/4, 5, 13 (West 1994); 77 Ill. Adm. Code §§820.500(b)(1) through (b)(3) (1996)). The defendant again filed a motion to dismiss the plaintiffs' complaint pursuant to section 2--619 of the Code. The trial court dismissed the allegations of the complaint sounding in common-law negligence but refused to dismiss the remaining allegations relating to duties arising out of the Beach Act and Beach Code. After discovery in the case was substantially completed, the defendant filed a motion for summary judgment based on the following arguments: (1) the defendant was entitled to immunity from suit under the Recreational Use of Land and Water Areas Act (745 ILCS 65/1 et seq. (West 1994)); (2) the defendant's Beach Act claim was inapplicable under the facts of this case; (3) the "open and obvious condition" doctrine precludes recovery under the facts alleged; (4) the defendant is entitled to partial summary judgment on the basis of the affirmative defense of comparative fault; and (5) the defendant's conduct was not the proximate cause of the plaintiff's injuries. The trial court denied the defendant's motion. The defendant then filed a motion to reconsider its summary judgment motion. The trial court granted the motion for summary judgment, finding that the condition upon the defendant's land was open and obvious and that the Beach Act did not establish that the plaintiff owed the defendant a duty.
SUMMARY JUDGMENT STANDARD
In appeals from summary judgment rulings, we conduct a de novo review of the evidence in the record. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7 (1997). Summary judgment should be granted only if the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the non-movant, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1996); Nowak v. Coghill, 296 Ill. App. 3d 886 (1998). Summary judgment is a drastic means of resolving ...