The opinion of the court was delivered by: Justice Quinn
Appeal from the Circuit Court of Cook County Honorable Deborah M. Dooling, Judge Presiding
In March of 1994 Delores Robinson filed a wrongful death and survival action on behalf of her son Ralph Robinson, a minor, deceased, against the defendant, Chicago Park District. The suit arose from the accidental drowning of her son during an open swim at the defendant's pool. During the pendency of the action, Delores Robinson passed away and the plaintiff, Derrick Robinson, was substituted as successor administrator.
A jury found the defendant liable for negligence and returned a verdict in favor of the plaintiff in the amount of $1,550,000. The court entered judgment on the verdict on May 4, 1999. The defendant filed a posttrial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The court denied defendant's motion and defendant now timely appeals.
On appeal, defendant alleges that it has statutory tort immunity under Section 3-108(b) of the Governmental and Governmental Employees Tort Immunity 745 ILCS 10/3-108(b)(West 1994), and therefore, the trial court committed reversible error by not directing a verdict in favor of the defendant. Defendant additionally alleges that the amount of damages is not supported by the evidence.
For the following reasons, we reverse.
On the afternoon of June 16, 1993, Ralph Robinson and three of his friends went to the Carver Park pool to go swimming. Carver Park pool, located at Carver Park, 939 East 132nd Place in Chicago, is owned and operated by the defendant. The pool is enclosed by a glass structure and ranges in depth from 11 feet at its deepest to 3 feet at its shallowest.
At approximately 3 p.m. Ralph and his friends arrived at Carver Park and went into the locker room to change into their swimsuits. On that afternoon, the pool had a posted open swim in progress and had two lifeguards, Charles Baskin and Kenneth Shores, scheduled to be on duty. Although Steve Davis, senior lifeguard, was at a meeting and not present on the pool deck, both Baskin and Shores were present on the pool deck that afternoon. After exiting the locker room, Ralph was given, and passed, a lap test in order to swim in the deep end of the pool. Baskin administered the test, which consisted of swimming two laps in the deep end and treading water. Ralph proceeded to the deep end of the pool, where he jumped off the diving board, treaded water, swam to the side and exited the pool.
The relevant facts that led up to Ralph's drowning were relayed to the jury through the testimony of occurrence witnesses James Griffin, one of Ralph's friends who had accompanied him to the pool, and lifeguard Charles Baskin.
Griffin testified that he arrived at the pool with Ralph Robinson, Darryl Harris and Kevin McClenton at approximately 3:30 p.m. that afternoon. Griffin stated that he and his friends had been swimming at the Carver pool on previous occasions . Griffin testified that after showering and changing in the men's locker room he proceeded out to the pool deck and entered the shallow end of the pool alone. Griffin stated that there were two lifeguards on the pool deck at that time. At that time, Griffin saw one of the lifeguards on the telephone and one of the lifeguards sitting on a steel bench talking to some people. Shortly after entering the pool, Griffin saw Ralph jump off the diving board into the deep end of the pool, swim to the edge, and then exit the pool. Griffin stated that he saw Ralph jump off the diving board a second time. Griffin testified that he was going under water while in the shallow end and was not watching the activities of the lifeguards at all times.
Griffin testified that he heard Darryl Harris, one of the other boys who had accompanied them to the pool, yelling his name from the deep end of the pool. Griffin saw Harris standing on the diving board and pointing to the water. When Griffin walked to the deep end, he saw Ralph lying on the bottom of the pool. Griffin testified that he began yelling for a lifeguard and waving his hand. Harris jumped in but was unable to retrieve Ralph. Griffin testified he and Harris were both yelling and waving for a lifeguard at this point. Griffin stated that Baskin looked over in their direction but failed to respond. Griffin testified that eventually Baskin dove into the pool and retrieved Ralph. Baskin began doing cardiopulmonary resuscitation (CPR) while Shores came running over with an oxygen tank.
Baskin testified that he had been a lifeguard for the Chicago Park District for 11 years. He stated at trial that he was certified from the American Red Cross and the Chicago Park District in life guarding at the time of the incident. Baskin testified that on June 16, 1993 he was working the 1 p.m. to 10 p.m. shift at the Carver Park pool. Baskin testified that there was a posted open swim that day from 3 p.m. to 5:30 p.m. He testified that he had positioned himself on a steel bench which was located at the drop off point in the pool to observe "all of the shallow and all of the deep." Baskin maintained that, while he may have answered questions or explained rules to swimmers, he was not talking to anyone for any length of time while sitting on the bench. Baskin testified that he remembered giving Ralph his lap test that day. Baskin knew Ralph because he was a regular at the Carver Park pool and a good swimmer. Baskin testified that after Ralph passed the swim test, he saw him jump off the diving board into the deep end of the pool. Baskin stated that he saw Ralph jump off the board, go to the bottom of the pool, come up and tread water a couple of times. Baskin testified that after the last time he saw Ralph jump in, he did not know he was in distress until, while walking toward the deep end and making his 10-second count, he saw Ralph lying on the bottom of the pool. Baskin testified that he did not see Ralph in distress on the ...