Bucheleres v. Chicago Park Dist.

• Decision Date: 18 April 1996
• Docket Number: Nos. 78760,78790,s. 78760
• Parties: , 216 Ill.Dec. 568 Michael BUCHELERES et al., Appellees, v. The CHICAGO PARK DISTRICT, Appellant. David SMITH, Appellee, v. The CHICAGO PARK DISTRICT, Appellant.
• Court: Illinois Supreme Court

Page 826

665 N.E.2d 826

171 Ill.2d 435, 216 Ill.Dec. 568

Michael BUCHELERES et al., Appellees, v. The CHICAGO PARK DISTRICT, Appellant.

David SMITH, Appellee, v. The CHICAGO PARK DISTRICT, Appellant.

Nos. 78760, 78790.

Supreme Court of Illinois.

April 18, 1996.

James D. Wascher, of Friedman & Holtz, P.C., Chicago, for appellant in No. 78760.

John Bernard Cashion, Chicago, for appellees in No. 78760.

Nelson A. Brown, Jr., Chicago, for appellant in No. 78790.

Edward J. Manzke, of Stotis & Baird, Chicago, for appellee in No. 78790.

Julie L. Trester, Michael Resis and Glen E. Amundsen, of Querrey & Harrow, Ltd., Chicago, for amicus curiae Illinois Association of Defense Trial Counsel in Nos. 78760 and 78790.

Steven J. Kleinman, of Wheaton, and Jay S. Judge, of Judge & James, Ltd., Park Ridge, for amici curiae Illinois Association of School Boards et al. in Nos. 78760, 78790.

John G. Phillips and Bruce Robert Pfaff, Chicago, for amicus curiae Illinois Trial Lawyers Association in Nos. 78760, 78790.

Justice McMORROW delivered the opinion of the court:

These consolidated appeals present the issue of whether defendant, the Chicago Park District (Park District), had a duty to warn against or protect plaintiffs from the risks associated with diving off concrete seawalls into Lake Michigan. In both cases, the circuit court of Cook County granted the Park District summary judgment on the basis that it did not have a duty to warn plaintiffs of the dangers involved in diving into a natural body of water because such danger was open and obvious. In each case, with one justice dissenting, the same appellate panel reversed and remanded for trial. In Bucheleres, 269 Ill.App.3d 791, 207 Ill.Dec. 239, 646 N.E.2d 1326, the appellate court majority held that summary judgment was improper because there existed a question of fact regarding whether defendant adequately warned plaintiffs of the risks of diving into shallow water. In Smith, 269 Ill.App.3d 812, 207 Ill.Dec. 243, 646 N.E.2d 1330, the appellate court majority held that if defendant knew or should have known of the presence of submerged objects in the water into which plaintiff dived, and failed to warn against such danger, a cause of action for willful and wanton conduct would be stated and governmental tort immunity would not apply. We granted defendants' petitions for leave to appeal in both cases (145 Ill.2d R. 315(c)) and consolidated them.

BACKGROUND

Bucheleres, No. 78760

The record contains pleadings and discovery material that may be summarized as follows. On May 27, 1988, one day before the official opening of the Chicago beaches. Michael Bucheleres arrived at the Oak Street Beach at approximately 11 a.m. No lifeguards were on duty. Many people had congregated at the beach because of the warm weather. Bucheleres proceeded just north of Oak Street Beach toward Division Street and joined a group of people who were playing a game next to a concrete seawall commonly called the "Division Ledge." After awhile Bucheleres left the game, ran approximately 15 feet, and dived off the seawall head first into the lake with his arms extended over his head. He struck his head on the sand bottom and then floated to the surface, unable to move his arms or legs. Others present at the Division Ledge helped pull Bucheleres out of the water. As a result of his injury, Bucheleres was diagnosed a quadriplegic.

Bucheleres filed suit against the Park District in its capacity as the entity that owns, operates, and maintains the lakefront beach areas. Plaintiff claimed that the Park District failed to adequately warn against and protect persons from the dangers of diving from the Division Ledge into shallow water. Specifically, he claimed that in the months preceding his accident, defendant had ordered that a large quantity of sand be added to the Oak Street Beach and Division Ledge area to compensate for sand erosion that had occurred during the winter. According to Bucheleres, such placement of sand effectively rendered the water level shallower than it had been previously and thereby triggered a duty upon the Park District to ensure that swimmers would not attempt to dive from the Division Ledge into Lake Michigan. Bucheleres claimed that defendant was aware of the popularity of the Division Ledge as a gathering place and was also aware that persons had, in the past, dived from the Ledge into the lake and sustained injuries because of the shallowness of the water.

The Park District moved for summary judgment contending that it owed Bucheleres no duty to warn or protect because of the open and obvious dangers of diving into Lake Michigan without first ascertaining the depth of the water. Therefore, defendant argued, the law did not require defendant to anticipate or guard against plaintiff's injury.

The trial court considered a substantial number of depositions and affidavits from a variety of witnesses regarding the incident itself, the existence and placement of warning signs in the area, and the fluctuating level of the lake water over the years. Evidence indicated that sand was brought to the Division Ledge and Oak Street Beach area, as part of the Park District's ongoing shoreline protection and beach rehabilitation plan, to replenish sand lost to erosion and water currents. After a severe winter storm in 1987 washed away the sand from the southern edge of the Division Ledge and caused an adjacent concrete promenade to collapse, an independent contractor was hired to repair the damaged promenade and fill the washed out area with sand. Between April 19 and 22, 1988, the Park District graded the sand toward the north at Oak Street Beach to reclaim portions of the beach that had been eroded or pushed south during the winter. Other evidence revealed that in addition to changes in the level of the sand bottom caused by storms and erosion, the surface level of the lake dropped naturally by more than one foot during the months preceding Bucheleres' injury. The evidence further indicated that the water adjoining the seawall of the Division Ledge historically was shallow, often only three feet deep. The Park District was aware of some diving activity in the Division Ledge area and knew that some patrons of the beach had bumped their heads or scraped the bottom, but according to the Park District's information, no one previously had sustained as severe a fracture as had Bucheleres.

Michael Bucheleres, aged 21 at the time of his injury, was an experienced swimmer and diver who learned to swim as a young child and swam competitively until he entered high school. He had visited Oak Street Beach approximately 50 times before the date of his injury. He said he had dived into the Lake from the Division Ledge "many times."

It is undisputed in the record that the Park District took measures to prevent users of the beach from attempting hazardous diving into the shallow water off the Division Ledge. Since at least 1983, the Park District has instructed its lifeguards to issue oral warnings to beach patrons. In addition, defendant has long posted signs prohibiting diving from the Division Ledge. Until 1984, these signs were painted in yellow block letters on the surface of the Division Ledge and read "No Diving" or "Danger No Diving." Since 1985, the Park District has used the international symbol for no diving, stenciling signs every 25 feet along the Ledge. Although Bucheleres and another witness testified that they did not recall seeing any "no diving" signs on the Ledge on May 27, 1988, other witnesses, including Betty Bucheleres Bivans, co-plaintiff, testified that signs painted on the Ledge remained legible, although faded, on and after the date of the accident.

The trial court granted summary judgment to the Park District, holding, "The open and obvious danger posed by diving into the unchartered waters under the circumstances of this case must control this court's determination. The peril of the lake bottom should have been anticipated." The court held that the Park District's grading of the beach area with added sand did not change the result because plaintiff was "swimming in the lake at that location for the first time in this season [and failed to check its depth]. The doctrine of open and obvious danger posed by a body of water with a sandy beach with shifts, with currents and disturbances * * * is [not] vitiated by the fact that the Park District graded the beach and added sand which shifted in the waters thereby affecting the depth from the past year. * * * It is a large open lake, there are constantly shifting sands from currents. * * * It cannot be said that the lake presented perils that the plaintiff did not appreciate."

The appellate panel reversed the trial court's entry of summary judgment, reasoning that the Park District had a duty to exercise reasonable care to warn beach patrons of the risks of diving into shallow water notwithstanding that the risk presented by water generally is considered "open and obvious." The appellate court remanded the cause for trial, stating, "[T]here is a question of material fact as to whether signs prohibiting diving or warning of the dangers of diving in the area of the Division Ledge were sufficient at the time of the occurrence." 269 Ill.App.3d at 795, 207 Ill.Dec. 239, 646 N.E.2d 1326.

Smith, No. 78790

In August 1985, David Smith and a friend went to Foster Avenue Beach, which is owned, operated, and maintained by the Park District. Approximately 50 feet north of the sand beach is a seawall with rocks or molded slabs, "like platforms." This seawall area is also maintained by the Park District, to the extent of removing litter and debris on a periodic basis. On the day of his accident, Smith, who was 27 years old, went to the seawall area north of the beach where approximately 20 people were jumping, diving, and swimming. Smith, an experienced swimmer, said he had dived from this area many times without...