Choice v. YMCA of Mchenry Cnty.

• Decision Date: 17 August 2012
• Docket Number: 1–10–2878,Nos. 1–10–2877,1–10–2897.,s. 1–10–2877
• Citation: 2012 IL App (1st) 102877,976 N.E.2d 584,364 Ill.Dec. 306
• Parties: Virginia CHOICE, as Special Administrator of the Estate of Melvin Choice III, Deceased; Leonard Avant, as Special Administrator of the Estate of Jimmy Avant, Deceased; and Brigette Jones, as Special Administrator of the Estate of Adrian Jones, Deceased, Plaintiffs–Appellants, v. YMCA OF McHENRY COUNTY, an Illinois Corporation, Defendant–Appellant (North Lawndale College Preparatory Charter High School, an Illinois Corporation, and the Board of Education of the City of Chicago, Defendants–Appellees).
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 102877

976 N.E.2d 584

364 Ill.Dec. 306

Virginia CHOICE, as Special Administrator of the Estate of Melvin Choice III, Deceased; Leonard Avant, as Special Administrator of the Estate of Jimmy Avant, Deceased; and Brigette Jones, as Special Administrator of the Estate of Adrian Jones, Deceased, Plaintiffs–Appellants,

v.YMCA OF McHENRY COUNTY, an Illinois Corporation, Defendant–Appellant (North Lawndale College Preparatory Charter High School, an Illinois Corporation, and the Board of Education of the City of Chicago, Defendants–Appellees).

Nos. 1–10–2877, 1–10–2878, 1–10–2897.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 17, 2012.

Timothy J. Young, Leena Soni, and Michael L. Shacter, Lewis Brisbois Bisgaard & Smith, LLP, Chicago, for appellant YMCA of McHenry County.

Thomas E. Pakenas, Dale & Pakenas, Chicago, for appellant Virginia Choice.

David E. Rapoport and Joshua L. Weisberg, Rapoport Law Offices, P.C., and Matthew Willens, Willens Law Offices, P.C., both of Chicago, for appellant Leonard Avant.

Melvin Brooks, Cochran, Cherry, Givens, Smith & Montgomery, LLC, Chicago, for appellant Brigette Jones.

Joseph P. Postel, David S. Osborne, and James L. Wideikis, Reppaport & Postel, LLC, and Lauren K. Meacham and Patrick J. Norris, Meacham & Starck, both of Chicago, for appellees.

OPINION

Presiding Justice EPSTEIN delivered the judgment of the court, with opinion.

[364 Ill.Dec. 310]¶ 1 This case arises from the drowning deaths of three high school students on the Fox River. In November 2008, students from North Lawndale College Preparatory Charter High School (Lawndale High School) were attending a one-week school ethical leadership program at Camp Algonquin, a camp operated and maintained by the YMCA of McHenry County (YMCA). In the early morning hours of November 14, 2008, 16 students surreptitiously left the dormitory to ride paddleboats on the nearby Fox River. As a result of this late-night boating excursion, three of the students, 17–year–old Melvin Choice III, Jimmy Avant, and Adrian Jones, ¹ drowned.

¶ 2 The estates of the three students who drowned (collectively, the Choice plaintiffs) brought a wrongful death suit against Lawndale High School, the Board of Education of the City of Chicago (Board) (collectively referred to as the school defendants), YMCA, and Visionquest Association, Inc., which allegedly designed and conducted the leadership retreat. In addition, one of the surviving students who witnessed the drownings, Marshaun Williams, brought suit against the school defendants, YMCA, and Visionquest Association for negligent infliction of emotional distress. The Choice plaintiffs' suit and the Williams suit were subsequently consolidated into the instant action.

¶ 3 The school defendants filed combined motions to dismiss the counts pertaining to them pursuant to sections 2–615 and 2–619 of the Code of Civil Procedure (735 ILCS 5/2–615, 2–619 (West 2008)), claiming that they were fully immunized from liability by section 3–110 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1–101 et seq. (West 2008)) (Tort Immunity Act), which provides, “Neither a local public entity nor a public employee is liable for any injury occurring on, in, or adjacent to any waterway, lake, pond, river or stream not owned, supervised, maintained, operated, managed or controlled by the local public entity.” 745 ILCS 10/3–110 (West 2008). Plaintiffs, on the other hand, contended that the applicable immunity provision was section 3–109 of the Tort Immunity Act, which provides qualified immunity for local public entities against participants in hazardous recreational activities, but, unlike section 3–110, contains an exception for willful and wanton misconduct. These statutes and their interplay shall be fully discussed in the Analysis section of this decision.

¶ 4 The trial court found that section 3–110 of the Tort Immunity Act fully immunized the school defendants from liability. Accordingly, it granted the school defendants' motions to dismiss the counts against them, leaving the action standing against the remaining defendants. Both the Choice plaintiffs and YMCA filed appeals pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), which have been consolidated into the appeal at hand. ² (Visionquest Association did not appeal from the judgment at issue herein and, according to the brief of the school defendants, has been dismissed without prejudice prior to the issuance of this opinion.) For the reasons that follow, we affirm.

¶ 5 I. BACKGROUND

¶ 6 The Choice plaintiffs' first consolidated complaint at law alleges the following. On October 15, 2008, YMCA's Camp Algonquin accepted reservations for 31 students from Lawndale High School to attend a one-week ethical leadership program to be held at Camp Algonquin from November 7, 2008, to November 14, 2008. According to the complaint, this program was staffed by employees of each of the defendants, who shared responsibility for the safety and security of the students.

¶ 7 Camp Algonquin is located along the western shore of the Fox River. Accordingto the complaint, on October 8, 2008, approximately a month before the program began, Camp Algonquin staff placed seven paddleboats near the shore of the Fox River without chaining or otherwise securing the paddleboats to prevent them from being used without permission. The complaint states that these seven paddleboats were stored without their drain plugs attached. Without drain plugs, the paddleboats would slowly fill with water during ordinary use and become increasingly unstable in a process that would be gradual because of the small size of the drain holes and the fact that the boats contained floatation material. The complaint alleges that the paddleboats remained without drain plugs until the incident that occasioned this lawsuit.

¶ 8 The ethical leadership program took place from November 7, 2008, to November 14, 2008. During that week, the 31 Lawndale High School students were assigned sleeping accommodations in a building known as Ward House, with none of the staff being assigned to stay with them in the same building. This allegedly violated Camp Algonquin's chaperone rule, which required an 8:1 ratio of students to staff, as well as the Board's chaperone rule, which required a 6:1 ratio of students to staff.

¶ 9 According to the complaint, in the early morning hours of November 14, 2008, during their final night at Camp Algonquin, sixteen of the students sneaked out of Ward House at night, helped themselves to the YMCA paddleboats, apparently without permission, and rode them on the Fox River. The complaint alleges that the boat containing one of the plaintiffs, Choice, began to fill with water due to the missing drain plugs, and, as a result, Choice “was caused to enter the water.” The other two plaintiffs, Avant and Jones, allegedly dove into the water to save Choice, resulting in the drowning of all three of them.

¶ 10 The complaint further alleges that four days prior to this occurrence, on the night of November 10, 2008, four of the students sneaked out of the Ward House at approximately 11 p.m. They took one of the paddleboats and rode it briefly in the Fox River, not realizing that the drain plugs were missing or that the boat was taking on water. When they finished, they pulled the paddleboat partially onto the west shore of the Fox River, where they left it for the night before returning to Ward House. By the next morning, the paddleboat had gotten loose and floated across to the opposite shore of the river, where it allegedly remained in plain view until November 14, 2008. The complaint alleges that most, if not all, of the students knew about the paddleboat on the far shore of the river. The complaint further alleges that staff of each of the defendants should have known that there was a paddleboat on the far shore and why it was there.

¶ 11 The Choice plaintiffs filed a complaint in 25 counts seeking damages for wrongful death and for conscious pain and suffering. Counts I through VI assert claims of negligence against YMCA, alleging that YMCA negligently failed to reinstall the drain plugs on the paddleboats, negligently placed the paddleboats without drain plugs in an area that camp employees knew or should have known would be frequented by children, and negligently failed to warn of the condition of the paddleboats. Plaintiffs further allege that YMCA negligently allowed 31 high school students, including the three Choice plaintiffs, to stay at Ward House without an appropriate amount of chaperones.

¶ 12 Counts VII through XII allege willful and wanton conduct by YMCA, predicatedupon the same allegations of negligence made in counts I through VI.

¶ 13 Counts XIII through XVIII assert claims for “Willful and Wanton Conduct” against the school defendants. In these counts, plaintiffs allege that the school defendants had a duty to properly supervise and maintain discipline of the high school students attending the ethical leadership program. Plaintiffs further allege that, in violation of this duty, the school defendants:

“a. Willfully, wantonly and in violation of Board of Education of the City of Chicago rules, allowed 31 high school students including Jimmy Avant, Melvin Choice III and Adrian Jones to stay in The Ward House dorm at YMCA Camp Algonquin without an appropriate number of qualified chaperones staying with them from November 7, 2008 to November 14, 2008;

b. Willfully and wantonly failed to adequately supervise the high school students attending the ethical leadership program at YMCA Camp Algonquin from November 7, 2008 to November 14, 2008;

c. Willfully and wantonly failed to adequately discipline the high school students attending the ethical leadership program at YMCA Camp Algonquin from November 7, 2008 to November 14, 2008.”

Counts XIX through XXIV ³ assert claims of negligence against ...