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Carolyn Barnett, Individually and As Special Administrator of the v. Ludwig and Company and Lake Towers Associates

November 4, 2011

CAROLYN BARNETT, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE
ESTATE OF DARIUS SMITH, DECEASED, PLAINTIFF-APPELLANT,
v.
LUDWIG AND COMPANY AND LAKE TOWERS ASSOCIATES, II, LLP, INDIVIDUALLY AND D/B/A CINNAMON LAKE TOWERS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 08-L-912 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

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

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

OPINION

¶ 1 Plaintiff, Carolyn Barnett, individually and as special administrator of the estate of Darius Smith, appeals from the circuit court's summary judgment in favor of defendants, Ludwig and Company and Lake Towers Associates, on plaintiff's claim for negligence for the drowning death of Darius in a swimming pool at an apartment complex owned and managed by defendants. Plaintiff also appeals from the denial of her own motion for summary judgment. We affirm, holding that, as matter of law, defendants breached no duty of care to Darius.

¶ 2 BACKGROUND

¶ 3 On July 30, 2008, Darius drowned in an outdoor swimming pool that Cinnamon Lake Towers apartment complex (CLT) provided for residents and their guests. Darius drowned in the deepest part of the pool, which was nine feet deep. He was 17 years old at the time. Darius did not reside at CLT in July 2008 but was a guest of his sister, Shanta Barnett. Plaintiff brought a negligence suit against defendants. She alleged the following. On the day in question, defendants' employee, the "pool attendant," was on duty at the pool. The pool attendant was not a lifeguard, and defendants did not assign a lifeguard to the pool that day. On "multiple occasions" prior to July 30, 2008, the pool attendant permitted minors under the age of 16 to swim in the pool even though the attendant knew that no lifeguard was present and that no parent or guardian was accompanying the minors. On July 30, 2008, Darius and "other teenagers" were swimming, jumping, and diving into the pool and were playing "tag-like games" in the pool and on the deck. The attendant did not admonish Darius and the others to stop playing in this "dangerous" manner. At one point during this activity, Darius struck his head on the concrete pool deck, became disoriented, and was unable to swim. For several minutes he "call[ed] for help in the deep end of the swimming pool ***, thrashing about, and in distress." The pool attendant was asked to help Darius, but before the attendant took action Darius was brought out of the pool by others. Darius was later pronounced dead from drowning.

¶ 4 The complaint alleged numerous grounds of negligence. First, plaintiff alleged that defendants were negligent because their employee, the pool attendant, did not attempt to stop the "dangerous activities" in which the swimmers were engaged and did not act to assist Darius when alerted that he was in distress. Second, plaintiff alleged that defendants failed to comply with the Swimming Facility Act (Act) (210 ILCS 125/1 et seq. (West 2010)), section 820.300(b) of title 77 of the Illinois Administrative Code (Code) (77 Ill. Adm. Code 820.300(b) (2011)), and defendants' own policies on pool use in force on July 30, 2008. Specifically, plaintiff claimed that defendants violated section 820.300(b) "by not providing a lifeguard" and violated the Act "by not preserving the public health, safety, and general welfare of residents and guests using their swimming pool, including [Darius], [and] by failing to provide and enforce the minimum required standards for safety for its swimming pool as required by the [Code]." Plaintiff did not allege how defendants failed to comply with their own policies, but did quote the following extracts from those policies:

" 'The protection, health, and safety of our residents are our primary concern.' " " 'An attendant is present in the pool when it is open. No one is permitted in the pool if the attendant is not present without the consent of management. The attendant has all authority to maintain the proper conduct and operation of the pool. It is their discretion to close the pool whenever circumstances warrant it. They also retain the right to order anyone out of the pool and the surrounding area if they deem their conduct to be hazardous to themselves, the property, or other residents/guests. If they find it necessary to summon the police, ambulances etc., they have full authority to do so.' "

Plaintiff also alleged that defendants' policies provided that "residents and guests over the age of sixteen (16) were allowed to use the pool and the pool area without the requirement of a supervising adult."

¶ 5 On March 11, 2010, plaintiff filed a "motion for summary judgment on liability." She attached to the motion the depositions of (1) John Sullivan, who was the pool attendant on duty at CLT from 11 a.m. to 3 p.m. on July 30, 2008; (2) Rachel Elabbar, the pool attendant who went on duty at 3 p.m. on July 30 and was on duty when Darius drowned; (3) Nicole Salter, who was the manager of CLT from 2007 to the present; (4) John Lantz, who was hired by defendants in 1992 and has been their director of pool operations since 1998; (5) Oliver Salmeron, who was 12 years old in July 2008 and was using the pool when Darius died; and (7) Coral Salmeron, Oliver's sister, who was 17 years old*fn1 in July 2008 and was using the pool when Darius died. Plaintiff also attached a copy of defendants' policies that were in effect on July 30, 2008.

¶ 6 Defendants responded to plaintiff's motion and filed their own motion for summary judgment. They attached the same depositions and many of the same documents that plaintiff attached to her motion.

¶ 7 The following is taken from the attachments to the motions. On July 30, 2008, defendants had in force a document entitled "Cinnamon Lake Towers Pool Regulations" (CLT regulations), which it gave to any resident of the complex who wished to secure a pass for admission to the pool area. The CLT regulations state that they were promulgated "[i]n conjunction" with title 7, section 820.360, of the Code (77 Ill. Adm. Code 820.360 (2011)), which requires that pool operators display conspicuously in the pool area, and enforce, certain rules specified by the section. The regulations contain the provisions quoted above dealing with the authority of the pool attendant. The regulations also restrict pool use to residents of the complex and their guests. The regulations contain other restrictions, including the following:

"1. *** Residents who are 16 years of age or older may use the pool during the posted hours of operation. Since there is no proven method for pool attendants to discern a person's age, other than what they state, it may be necessary for pool attendants to refuse admittance to anyone they doubt is of the required age. They may also request that a person swim a lap in the pool to ascertain whether they will need to be supervised by a person of at least 16 years of age. Resident(s) must accompany their guest(s).

2. Anyone 15 years of age*fn2 and under[] must be accompanied by a parent or legal guardian adult (18 years or older) who have [sic] a valid pool pass."

At the bottom of the regulations is written, in large print:

"*NO DIVING ALLOWED*

We Do Not Have Lifeguards On Duty-Swim At Your Own Risk"

¶ 8 Lantz testified that part of his responsibility as defendants' director of pool operations is to ensure that the signs required by the Code are displayed in the pool area. Lantz checks the signs twice a summer: first, before the pool opens for the season, and, second, in mid-summer. Lantz did not know when exactly he did the mid-summer check in 2008 but believed that it would have been before July 30. Lantz also noted that the maintenance supervisor for CLT checks the signs daily. On August 1, 2008, the day after Darius drowned, Lantz took pictures of the signs. Posted in two places on the fence that encircles the pool area is a sign that reads: "WARNING. NO LIFEGUARD ON DUTY. Children under the age of 16 should not use pool without an adult in attendance." Also, two notices are posted to a bulletin board on the pool house located inside the pool area. The first notice reads: "NOTICE. This facility is NOT protected by lifeguards. Persons under the age of 16 must be accompanied by a parent, guardian, or other responsible person at least 16 years of age. Swimming alone is not recommended." The second notice begins, "NOTICE. Patron Regulations for Swimming Pools," and then states verbatim the rules that section 820.360 requires be posted.

One of the rules states: "If present, lifeguards are responsible for enforcing safety rules and responding to emergencies. Parents or guardians should supervise their children."

¶ 9 The photographs also show rescue devices hanging on the exterior of the pool house. One is a flotation ring. The other is a shepherd's hook, which, the witnesses agreed, is designed to pull a person out of the water.

¶ 10 Salter testified that CLT has had no lifeguard in the time she has been employed there. Rather, CLT uses a pool attendant, who is positioned by the gate to the pool area and restricts access to those authorized by the CLT regulations. The pool attendant requires residents to sign a log sheet when they enter the pool area. The log sheet for July 30, 2008, was used as an exhibit at the depositions and is attached to the summary judgment motions. According to Salter, the pool attendant has no discretion to allow a person under 16 years of age in the pool area without a parent or legal guardian. Accordingly, if at any time the parent or guardian leaves the pool area, the child or ward must leave as well. Salter also stated that, though no one may enter the pool area who is not a resident or a guest of a resident, the pool attendant has the "discretion" to permit a guest to remain in the pool area if the resident leaves temporarily, assuming the guest is at least 16.

¶ 11 Salter acknowledged that Elabbar told police that Darius had been in the pool area for 11/2 hours before he drowned at approximately 4:45 p.m. Salter also acknowledged that Elabbar told her that Shanta "had signed in and left." Salter noted that Elabbar would have had the "discretion" to allow Darius to stay if Shanta left.

¶ 12 Salter testified that she hires the pool attendants, who must have CPR training but need not have lifeguard training or certification. As part of the orientation, Salter shows the attendants how to use the shepherd's hook. Salter acknowledged that, when she hired Elabbar, she knew that Elabbar could not swim.

¶ 13 Counsel represented to Salter at her deposition that several residents of CLT had claimed that their children had used the pool without a parent or guardian present. Salter had no personal knowledge of the subject matter of the statements but doubted that the pool attendant would have let the children use the pool area without a parent or guardian.

ΒΆ 14 Sullivan testified that he was a part-time pool attendant at CLT from 2006 through 2008 and that his shift was 11 a.m. to 3 p.m. He did not have a lifeguard license while he was working at CLT. Sullivan testified that the pool attendant's responsibilities were to keep the pool clean and to make sure that only persons authorized by the CLT regulations were allowed into the pool area. Sullivan also testified, however, that he tried to avoid distractions while on duty so that he could "make sure nobody drown[ed]." Sullivan had no memory of Darius swimming in the pool during his shift on July 30, 2008. Sullivan assumed ...


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