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Nikolas Bezanis v. Fox Waterway Agency

March 15, 2011

NIKOLAS BEZANIS,
PLAINTIFF-APPELLANT,
v.
FOX WATERWAY AGENCY THE SHERIFF OF LAKE COUNTY,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 09-L-773 and Honorable Christopher C. Starck, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Nikolas Bezanis, dived headfirst from a boat into a shallow area of a lake, about 400 feet from shore, and he was severely injured when his head struck the lake bottom. Plaintiff filed a three-count second amended complaint, alleging that defendants, Fox Waterway Agency (FWA) and the Lake County sheriff (Sheriff), owed and breached a duty to warn boaters and swimmers of the risk of diving into shallow water far from shore. The trial court dismissed with prejudice the second amended complaint, and plaintiff appeals. The facts of this case are tragic, but the well-settled authority involving the open and obvious risks associated with bodies of water compels us to conclude that defendants owed plaintiff no duty to warn of the risk of diving far from shore. We affirm the dismissal with prejudice of plaintiff's second amended complaint.

¶ 2 I. FACTS

¶ 3 The injury occurred at 5:45 p.m. on August 21, 2008, on Petite Lake, which is one of 15 lakes that comprise the Illinois Fox River's Chain O' Lakes system. The complaint alleges that plaintiff, a teenager, dived headfirst off an anchored boat in the middle of the lake, about 400 feet from shore. As the water was only three feet deep in that area, plaintiff struck his head on the bottom of the lake and he is now quadriplegic. Plaintiff alleges that defendants were responsible for the safety of people on the lake and breached their duty of care by failing to place buoys, markers, or other flotation devices on the water to warn against diving into the shallow parts of the lake, including into those areas far from shore. Count I alleges that FWA was negligent, and counts II and III allege willful and wanton conduct by FWA and the Sheriff, respectively.

¶ 4 FWA and the Sheriff each filed a motion to dismiss under sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (Code). See 735 ILCS 5/2-615, 2-619(a)(9), 2-619.1 (West 2010) (section 2-619.1 providing for combined motions seeking relief under sections 2-615 and 2-619). FWA argued that counts I and II failed to state claims of negligence and willful and wanton conduct because plaintiff had failed to allege facts to establish that FWA owed plaintiff a duty to warn (see 735 ILCS 5/2-615 (West 2010)). In particular, FWA argued that plaintiff should have known that diving into water of unknown depth presents an open and obvious risk of injury. FWA also argued that sections 2-201 and 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201, 3-108(a) (West 2010)) conferred tort immunity that was affirmative matter barring the claims (see 735 ILCS 5/2-619(a)(9) (West 2010)).

¶ 5 The Sheriff argued that count III failed to state a claim of willful and wanton conduct (see 735 ILCS 5/2-615 (West 2010)) and that certain sections of FWA's code of rules and regulations were affirmative matter defeating the claim (see 735 ILCS 5/2-619(a)(9) (West 2010)). Specifically, the Sheriff argued that (1) the risk of injury from diving was open and obvious, and therefore plaintiff had failed to allege sufficient facts to establish a duty to warn; (2) plaintiff had failed to allege sufficient facts that, under section 1-210 of the Tort Immunity Act (745 ILCS 10/1-210 (West 2010)), the Sheriff had engaged in a course of action that showed an actual or deliberate intention to cause harm or an utter indifference to or conscious disregard for the safety of others; and (3) plaintiff had failed to allege sufficient facts to show that the Sheriff owed plaintiff a special duty so as to overcome the immunity conferred by section 2-103 of the Tort Immunity Act (745 ILCS 10/2-103 (West 2010)). The Sheriff also argued that several statutes and rules specifically assigned responsibility for the Chain O' Lakes to other entities, including the Illinois Department of Natural Resources (DNR) and FWA, and thus were affirmative matter defeating the claim against the Sheriff.

¶ 6 On May 12, 2010, the trial court dismissed the complaint with prejudice, and the court denied plaintiff's motion to reconsider on August 31, 2010. In a one-page handwritten order, the court stated that defendants did not owe plaintiff a duty to warn and that defendants were immune from plaintiff's claims. Plaintiff timely appeals.

¶ 7 II. ANALYSIS

¶ 8 Defendants' motions to dismiss were based on sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2010)). A dismissal under section 2-615 admits all well-pleaded facts and attacks the legal sufficiency of the complaint and presents the question of whether the complaint states a cause of action upon which relief could be granted. 735 ILCS 5/2-615 (West 2010); La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 790 (2001). A motion to dismiss under section 2-619, on the other hand, admits the legal sufficiency of the complaint but raises defects, defenses, or other affirmative matters that appear on the face of the complaint or are established by external submissions that act to defeat the claim. Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70 (2002); see 735 ILCS 5/2-619(a)(9) (West 2010) (permitting involuntary dismissal where the claim "is barred by other affirmative matter avoiding the legal effect of or defeating the claim"). A motion to dismiss under either section 2-615 or section 2-619 admits all well-pled allegations in the complaint and reasonable inferences to be drawn from the facts. In re Chicago Flood Litigation, 176 Ill. 2d 179, 184 (1997). A reviewing court must interpret all of the pleadings and supporting documents in the light most favorable to the nonmoving party. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368-69 (2003). Our review of a dismissal under either section is de novo. Van Meter, 207 Ill. 2d at 368.

¶ 9 A. Completeness of the Record

¶ 10 FWA contends that the dismissal must be affirmed on the ground that plaintiff has failed to supply this court with reports of proceedings from the hearings on defendants' motions to dismiss and plaintiff's motion to reconsider the dismissal. Under Foutch v. O'Bryant, 99 Ill. 2d 389 (1984), an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error; and in the absence of such a record on appeal, it will be presumed ...


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