Bujnowski v. Birchland, Inc., 2–14–0578.

• Court: United States Appellate Court of Illinois
• Citation: 37 N.E.3d 385
• Docket Number: No. 2–14–0578.,2–14–0578.
• Parties: Krysztof BUJNOWSKI, Plaintiff–Appellant, v. BIRCHLAND, INC., d/b/a Fourth Lake Resort, Defendant–Appellee.
• Decision Date: 21 July 2015

37 N.E.3d 385

Krysztof BUJNOWSKI, Plaintiff–Appellant
v.
BIRCHLAND, INC., d/b/a Fourth Lake Resort, Defendant–Appellee.

No. 2–14–0578.

Appellate Court of Illinois, Second District.

July 21, 2015.

37 N.E.3d 385

Masha A. Chepov, of Chepov & Scott LLC, Chicago, for appellant.

Gregory J. Fraterrigo, of Law Offices of Gregory J. Fraterrigo, Chicago, for appellee.

OPINION

Justice SPENCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Krysztof Bujnowski, sued defendant, Birchland, Inc., doing business as Fourth Lake Resort, for negligence. Plaintiff had dived into a lake at defendant's resort, injuring himself. Defendant moved for summary judgment (735 ILCS 5/2–1005(c) (West 2012)) on the basis that it had owed plaintiff no duty. The trial court granted the motion. Plaintiff appeals. We affirm.

37 N.E.3d 386

¶ 2 Plaintiff's complaint alleged as follows. Defendant operates a recreational area that charges admission. On July 1, 2012, while lawfully on defendant's property, plaintiff dived off a pier into a lake and broke his neck. At the time, defendant had no employees monitoring the area. Defendant had been negligent for failing to supervise or train customers properly on the use of the area and for failing to warn them of the dangers of using the area.

¶ 3 Defendant moved for summary judgment, contending that it had owed plaintiff no duty, because the danger of diving into water is open and obvious. Defendant cited Bucheleres v. Chicago Park District, 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996), and Dowen v. Hall, 191 Ill.App.3d 903, 138 Ill.Dec. 933, 548 N.E.2d 346 (1989).

¶ 4 Defendant's motion attached a copy of plaintiff's deposition, in which he testified as follows. He was six feet, four inches tall. An experienced swimmer, he knew that water levels in a lake can fluctuate. Before July 1, 2012, plaintiff had been to defendant's resort twice, including two or three weeks earlier. On those occasions, he walked along the lake's shore and noticed the pier but did no diving and could not tell how deep the water was.

¶ 5 Plaintiff testified that, on July 1, 2012, he did not see any signs prohibiting diving. He had no idea how deep the water was where he made his dive. He never tried to measure it and, because the water was dirty, he could not tell by looking into it. He did not ask anybody how deep the water was. Three of plaintiff's friends were with him at the time. One of them, Mariusz Koziara, who was about six feet tall, successfully took a flat dive off the pier into the water shortly before plaintiff did. Plaintiff saw other people dive off the pier before he did. Although he had no idea how deep the lake was, he thought, judging by the people he had seen diving earlier, that it was deep enough.

¶ 6 Plaintiff testified that he took a flat dive off the edge of the pier. His hands, followed by his forehead, struck the bottom of the lake, and he slid through the mud. Plaintiff did not feel any rocks or debris. He managed to return to the pier but ended up with serious injuries.

¶ 7 Defendant's motion also attached a set of photographs of the lake and the area of the accident. Included was a photograph of a large sign on defendant's property, headed “NOTICE” and listing “Beach Regulations.” These included, “Diving in shallow water is not permitted.”

¶ 8 Plaintiff responded to the summary-judgment motion as follows. As a paying customer, he had been defendant's invitee. Dowen was inapposite because there the plaintiff, who had been injured by diving into a body of water, had been a mere licensee, so that the defendants had owed him only the duty to warn him of concealed defects of which they had known. Here, as plaintiff had been an invitee, defendant was liable for any injury caused by its failure to exercise reasonable care to protect him against a condition of which defendant (1) knew or should have known; (2) should have realized posed an unreasonable risk; and (3) should have expected that plaintiff would not discover or protect himself against. See Restatement (Second) of Torts § 343, at 215–16 (1965). Also, even had the danger been known or obvious to plaintiff, defendant owed him a duty if it should have anticipated the harm anyway. See id. § 343A(1), at 218.

¶ 9 Plaintiff argued that defendant owed plaintiff a duty to warn him of or otherwise protect him from the danger of diving into the lake. Plaintiff contended that “the issue [was] not whether the condition was open and obvious to the invitee, but

37 N.E.3d 387

whether it was open and obvious to the possessor.” Plaintiff reasoned that the law imposed a duty upon defendant because defendant reasonably could have foreseen that someone would dive off the pier into the water and defendant could easily have posted warning signs in the vicinity of the pier. Defendant, though, had merely placed one small warning on a sign near its entrance gate.

¶ 10 In reply, defendant argued as follows. The invitee/licensee distinction was abolished in 1984 by the Premises Liability Act (Act) (740 ILCS 130/1 (West 2012) ), under which a possessor of land owes any nontrespasser a duty of reasonable care. Dowen thus was still apposite for its holding that the danger inherent in diving into a body of water is open and obvious. Further, although an open-and-obvious danger does not, in itself, bar a duty (see Ward v. K mart Corp., 136 Ill.2d 132, 145, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990) ), plaintiff had no basis to raise Ward's exception to the rule of nonliability: the “distraction” exception, under which a defendant has a duty if he can reasonably foresee that the plaintiff's attention will be taken off the condition (id. at 149, 153–54, 143 Ill.Dec. 288, 554 N.E.2d 223 ).

¶ 11 The trial court granted defendant summary judgment and denied plaintiff's motion to reconsider. On appeal, plaintiff raises various, somewhat disjointed, arguments for reversal.

¶ 12 Summary judgment is proper when the pleadings, depositions, and other matters on file establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2012). Our review is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). To prevail in a negligence action, a plaintiff must plead and prove (1) that the defendant owed him a duty; (2) that the defendant breached that duty; and (3) that an injury proximately resulted from that breach. Deibert v. Bauer Brothers Construction Co., 141 Ill.2d 430, 434, 152 Ill.Dec. 552, 566 N.E.2d 239 (1990). The existence of a duty is a question of law that may be decided by summary judgment. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 391, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993).

¶ 13 In Dowen, the court addressed facts essentially similar to those presented here. In 1981 (before the Act took effect), the plaintiff, an adult, was injured when he made a flat dive off a pier into a muddy lake located on the defendants' property. At the time, the defendants had known that the water was only about 3 ½ feet deep, 4 to 6 inches less than usual. Dowen, 191 Ill.App.3d at 906, 138 Ill.Dec. 933, 548 N.E.2d 346. In his complaint, the plaintiff claimed alternatively that (1) he had been an invitee, and the defendants had negligently failed to warn him; and (2) he had been a licensee, and the defendants' failure to warn had been willful and wanton misconduct. The defendants received summary judgment on both counts. Id.

¶ 14 The appellate court affirmed. The court held first that the plaintiff had been the defendants' licensee, not his invitee, and that, as a consequence, the defendants had owed him only the duty to warn him of concealed defects of which the defendants knew. Id. at 906–07, 138 Ill.Dec. 933, 548 N.E.2d 346. The court then held that this duty had not been triggered, because the facts “demonstrate[d] as a matter of law that the danger of paralysis resulting from a flat dive off a pier into muddy waters of uncertain depth in a natural lake is open and obvious to a reasonable adult.” Id. at 907, 138 Ill.Dec. 933, 548 N.E.2d 346. “[A] reasonable adult in plaintiff's position

37 N.E.3d 388

would recognize that an attempt to execute a head-first flat dive into the lake, without prior awareness of the depth of the waters, might result in severe injury from hitting one's head on the lake bottom.” Id.

¶ 15 Thus, Dowen held that the test of openness and obviousness was not what the plaintiff actually knew at the time, but what he had reason to suspect and could have learned. The very character of the open body of water provided the warning of danger, obligating the plaintiff to inquire further or suffer the consequences. To invoke the open-and-obvious rule, the defendants did not need to prove that the plaintiff actually knew the depth of the water. Also, as long as the condition was open and obvious, what the defendants knew about the specific condition of the property at the time was not pertinent. That the defendants actually knew that the water was shallower than usual did not matter, because the plaintiff...