The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Tiffany Workman ("Plaintiff"), individually and as Special Administrator of the Estate of Jacob Lamb, a minor, ("Jacob") brought suit for wrongful death and survival against Defendants Bob Dinkins II ("Mr. Dinkins") and Julie Dinkins ("Mrs. Dinkins" and together with Mr. Dinkins "Defendants"), alleging that Defendants are liable for the death of her five-year-old son Jacob, who drowned in Defendants' pool. Pursuant to 28 U.S.C. § 1332, federal jurisdiction is proper based on diversity of citizenship of the parties and the matter in controversy exceeding $75,000. Because Plaintiff has not shown as a matter of law that Defendants owed Jacob a duty, Defendants cannot be held liable for his death. Even assuming that Plaintiff were able to show that Defendants owed a duty, Defendants cannot be held liable because there is no genuine issue of material fact as to whether Defendants' failure to maintain the swimming pool area, provide adequate safeguards to prevent unauthorized access to the pool, and to provide adequate supervision to Jacob was the proximate cause of Jacob's death. Additionally, there is no genuine issue of material fact as to whether Defendants' violations of the Will County Zoning Ordinance and Will County Building Code ("the Regulations") were the proximate cause of Jacob's death. Accordingly, Defendants' Motion for Summary Judgment is granted.
This suit stems from the tragic death of Jacob Lamb, who drowned in a swimming pool located in the backyard of his grandparents' home. Plaintiff's Amended Complaint at ¶¶ 2, 9. Jacob was the son of Plaintiff and Kendal Lamb ("Lamb"). Defendants' Statement of Material Facts Pursuant to Rule 56.1(a)(3) at ¶ 3 (hereafter "Def. 56.1 at ¶ __"). Jacob was the grandson of Defendants, who are the mother and stepfather of Lamb. Def. 56.1 at ¶ 3, Defendants' 56.1(a)(1) Exhibit C at pg. 5, lines 18-23. At the time of the incident, Jacob was five years old, approximately three feet tall, and weighed between fifty and sixty pounds. Def. 56.1 at ¶¶ 22-23, Plaintiff's Statement of Material Facts Pursuant to Rule 56.1(a)(3) at ¶ 22 (hereafter "Pl. 56.1 at ¶ __"). Prior to the incident, Jacob had been in Defendants' pool only three to five times, and only when other people were present. Def. 56.1 at ¶ 30. Jacob did not know how to swim, and when he had gone in Defendants' pool, he used arm flotation devices. Def. 56.1 at ¶ 31. In fact, Jacob was scared of water; he did not even like to take baths and would not go near water by himself. Def. 56.1 at ¶¶ 27-29. Jacob was also a bright child who listened well and would follow instructions when he was told to do something. Def. 56.1 at ¶¶ 25-26.
On July 2, 2004, Jacob began a two-week visitation with Lamb, his father. Def. 56.1 at ¶ 32. On July 4, 2004, Lamb and Jacob went to Defendants' residence in Wilmington, Illinois, between approximately 2:30 and 3:00 p.m. Def. 56.1 at ¶¶ 6, 33. Jacob had been to Defendants' house numerous times before July 4, 2004. Def. 56.1 at ¶ 34. Defendants owned a swimming pool which was built in 2001. Def. 56.1 at ¶ 7. When Lamb and Jacob arrived at Defendants' residence, Defendants were the only people there. Def. 56.1 at ¶ 36. After Lamb's and Jacob's arrival, Jacob began to play in the front yard, while Lamb joined Mr. Dinkins at the grill in front of the house near the garage. Def. 56.1 at ¶ 37, 39. Approximately fifteen to twenty minutes after their arrival, Jacob asked Lamb about going swimming in Defendants' pool; Lamb and Mr. Dinkins told Jacob that they would all go swimming together after dinner, and Lamb told Jacob to go inside and put on his swim trunks. Def. 56.1 at ¶¶ 40-42. After Jacob had returned outside wearing his swim trunks and gym shoes, Lamb told Jacob to put on his sandals instead, and to go inside and show Mrs. Dinkins. Def. 56.1 at ¶¶ 43-44.
Mrs. Dinkins, who was in the kitchen at the time, saw Jacob for the first time when he came into the house wearing the swimsuit. Def. 56.1 at ¶ 47. Jacob then complained to Mrs. Dinkins about the holes in his swimsuit; Mrs. Dinkins saw that Jacob was referring to his swimsuit's netting and told him that the swimsuit looked good on him and that they were all going to go swimming after they ate. Def. 56.1 at ¶ 49. Mrs. Dinkins and Jacob spent about three or four minutes together, after which Jacob left and went toward the living room; Mrs. Dinkins thought that Jacob was going to the living room to watch television until they ate, although she did not actually tell him to watch television. Def. 56.1 at ¶¶ 48, 50-51.
At approximately the same time, Mr. Dinkins finished preparing dinner and Lamb went inside the house to tell Mrs. Dinkins and Jacob that dinner was ready. Def. 56.1 at ¶ 52. Not seeing Jacob inside, Lamb asked Mrs. Dinkins where Jacob was; Mrs. Dinkins then told him that Jacob had just left the utility room. Def. 56.1 at ¶¶ 53-54. Lamb began looking for Jacob throughout the house, while Mrs. Dinkins went out into the backyard through the utility room door. Def. 56.1 at ¶ 55. Approximately two or three minutes later, Mrs. Dinkins found Jacob in the pool and screamed that Jacob was in the pool. Def. 56.1 at ¶¶ 56-57, 65. Lamb heard the scream, ran to the pool, and arrived at the pool within two seconds. Def. 56.1 at ¶ 58. Lamb found Jacob in the pool on the side nearest the house, directly opposite the ladder; he then jumped over the side of the pool and carried Jacob out of the pool. Def. 56.1 at ¶¶ 59-60. Jacob was not moving at the time. Def. 56.1 at ¶ 59.
Mr. Dinkins ran from the front of the house to the backyard and saw Lamb carrying Jacob and asking for help; Mr. Dinkins then began to administer CPR to Jacob on the pool deck. Def. 56.1 at ¶¶ 61-62. The paramedics later arrived and took Jacob to the hospital, where he was pronounced dead. Def. 56.1 at ¶ 63. Jacob was found in the pool roughly five minutes after he went into the house, and between twenty and forty minutes after he and Lamb arrived at the Defendants' house. Def. 56.1 at ¶¶ 64, 66. Lamb had remained on the Defendants' property the entire time until the incident occurred. Def. 56.1 at ¶ 35. The Kankakee County Coroner's Jury determined that Jacob's death was accidental. Def. 56.1 at ¶ 67.
The Defendants' swimming pool was located approximately seventy-five feet behind their residence; it was approximately four feet tall and was filled with clean water to about ten inches from the top of the pool. Def. 56.1 at ¶¶ 8-9. The pool was partially surrounded by a deck that was built in 2002; the deck went about one-third of the way around the pool, was four feet high, sixteen feet wide, twenty-four to thirty feet long, with two gated openings and four steps leading from the ground to the top of the deck. Def. 56.1 at ¶¶ 10-11, Pl. 56.1 at ¶ 15. One gate was at the top of the stairs leading to the deck ("deck gate"); the other gate was on the deck and led to the pool ("pool gate"). Def. 56.1 at ¶ 12. The deck gate was thirty to thirty-six inches wide, three-and-a-half feet tall, and approximately eight feet away from the pool; the pool gate was five to six feet wide, four feet tall, and six inches thick. Def. 56.1 at ¶¶ 13-14. On the date of the incident, there was a lock that had a latch that shut over and then twist locked on the pool gate. Pl. 56.1 at ¶ 21. Defendants did not know whether or not either gate was locked or latched at the time that Jacob accessed the pool. Pl. 56.1 at ¶ 24.
Defendants had rules pertaining to the use of their pool by children, specifically that children were not allowed to go in the pool without adult supervision; someone was always present with the children in the backyard. Def. 56.1 at ¶¶ 15-16. Defendants' children and grandchildren were told of these rules; Jacob knew he was not to go outside by the pool or deck unless someone was with him, and he had never been left unattended in the Defendants' pool, nor had he ever been in the pool by himself. Def. 56.1 at ¶¶ 18-20. Neither of the Defendants nor Lamb had ever even seen Jacob open the pool gate. Def. 56.1 at ¶ 21.
Will County Zoning Ordinance, Building Code, and Swimming Pool Regulations
The Will County Zoning Ordinance, which governed the construction of Defendants' pool, was established for the promotion of public health, safety, morals, and welfare. Pl. 56.1 at ¶ 3. Section 8.7-5-a of the Will County Zoning Ordinance required either that the entire lot where a pool was located be fenced with a fence of a minimum height of five feet, or that an enclosure of a minimum of twenty-four inches be attached to the ledge of the pool wall. Pl. 56.1 at ¶ 4. Section 8.7-5-b of the same ordinance required that pool gates be equipped with self-closing and self-latching devices designed to keep and capable of keeping such gate securely closed at all times when not in actual use. Pl. 56.1 at ¶ 5.
The Will County Building Code, which also governed the construction of Defendants' pool, was established to safeguard life or limb, health, and public welfare. Pl. 56.1 at ¶ 6. The Building Code required that a permit be obtained in advanceof the erection or installation of a structure such as Defendants' pool. Pl. 56.1 at ¶ 7.
A Will County Swimming Pool Regulations Affidavit, which specifically set forth all of the fencing, gate, and permit requirements of the Zoning Ordinance and Building Code, was to be executed before the construction of any swimming pool. Pl. 56.1 at ¶ 9-10. The Swimming Pool Regulations Affidavit also provided that these regulations were intended to help prevent drowning and electrical shocks. Pl. 56.1 at ¶ 11. Mr. Dinkins did not make any inquiries as to whether a permit was required for Defendants' pool, did not attempt to find out whether there were any regulations or ordinances that might apply to the erection of a pool, and did not inquire as to whether a fence would be required to have around a pool. Pl. 56.1 at ¶¶ 12-14.
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, the non-moving party cannot rest on its pleadings, but use evidentiary tools -- depositions, answers to interrogatories, and affidavits that are part of the record -- to show specific facts creating a genuine issue for trial. Id. at 324. A material fact is a fact that is outcome determinative under the governing law. Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). In determining whether a genuine issue as to any material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court, however, will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the Court will accept that statement as true for purposes of summary judgment. Terry v. Am. Airlines, Inc., 2004 U.S. Dist. LEXIS 19712, at 35 (N.D. Ill. 2004). An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.").
The Court applies Illinois state law to this matter because the case comes before the Court on diversity jurisdiction and all events leading to this suit occurred in Illinois. The purpose of the Illinois Wrongful Death Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent's death. Beetle v. Wal-Mart Assocs., Inc., 761 N.E.2d 364, 369 (Ill. App. Ct. 2001). The Illinois Survival Act allows a decedent's survivors to recover damages for injuries suffered by the decedent prior to death. Id. at 368. In order to maintain a wrongful death claim, a plaintiff must demonstrate: (1) the defendant owed a duty to the decedent; (2) the defendant breached that duty; and (3) the breach of duty proximately caused the decedent's death. Leavitt v. Farwell Tower Ltd. P'ship, 625 N.E.2d 48, 52 (Ill. App. Ct. 1993). If the plaintiff fails to establish one of these elements, summary judgment for the defendant is proper. Id. The existence of a duty is a ...