Dowen v. Hall

• Decision Date: 09 November 1989
• Docket Number: No. 1-87-1321,1-87-1321
• Citation: 548 N.E.2d 346,138 Ill.Dec. 933,191 Ill.App.3d 903
• Parties: , 138 Ill.Dec. 933 Thomas S. DOWEN, Plaintiff-Appellant, v. Thomas E. HALL, Joan Hall, Harry A. Hall, Darlene Hall, Richard B. Hall, Beverly Hall, Deborah A. Daly, Marie Daly, Thomas P. Stepanich and State Farm Fire and Casualty Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 346

548 N.E.2d 346

191 Ill.App.3d 903, 138 Ill.Dec. 933

Thomas S. DOWEN, Plaintiff-Appellant, v. Thomas E. HALL, Joan Hall, Harry A. Hall, Darlene Hall Richard B. Hall, Beverly Hall, Deborah A. Daly Marie Daly, Thomas P. Stepanich and State Farm Fire and Casualty Company, Defendants-Appellees.

No. 1-87-1321.

Appellate Court of Illinois,

First District, Fourth Division.

Nov. 9, 1989.

Rehearing Denied Jan. 9, 1990.

Joseph Michael O'Callaghan, Chicago, for plaintiff-appellant.

Stephen E. Sward, Rooks, Pitts and Poust, Chicago, Kiesler & Berman (John R. Garofalo and David J. Kiesler, of counsel), Victor J. Piekarski, Ellyn B. Dorf and Michael Resis of Querrey & Harrow Ltd., Chicago, for defendants-appellees.

Justice McMORROW delivered the opinion of the court:

Plaintiff Thomas Dowen (plaintiff) appeals from the trial court's entry of summary judgment in favor of defendants Thomas E. Hall and others (defendants). Plaintiff maintained that defendants had been either negligent or wilful and wanton in their failure to warn him of the risk that he might sustain a paralyzing spinal cord injury if he attempted a flat dive into the shallow water off a pier, allegedly owned by defendants, that extended into a natural lake. Because we conclude that an attempt to execute a flat dive into the uncertain depths of muddy lake waters presents an open and obvious danger of paralysis to a reasonable adult of plaintiff's age and experience, we find that, as a matter of law, defendants owed plaintiff no duty under the facts of this case. Accordingly we affirm the trial court's ruling.

The following uncontradicted facts derive from the pleadings and the excerpts of deposition testimony submitted by defendants in support of their summary judgment motions. Plaintiff was 23 years old when he was injured on June 6, 1981, by diving off defendants' pier into Fox Lake. Some of the defendants owned a cottage on the lake and had invited plaintiff to spend a weekend there with them. The lake bottom was basically muck and sand at the time of plaintiff's injury, and the lake water was muddy so that plaintiff could not see the bottom of the lake more than three feet from the shoreline.

Plaintiff had never been to the defendants' cottage before the injury. Because the cottage was located on an island, plaintiff and his companions, including some of the defendants' college-age children, were picked up at a marina and transferred by boat to the island in order to reach the cottage. They were transported by an 18-foot runabout type boat and were delivered to the pier of defendants' cottage. The pier extended about 100 feet from the shoreline into the lake. Plaintiff could not see the bottom of the lake as he stepped out of the boat onto the pier.

Plaintiff and his companions went directly to defendants' cottage, where they ate dinner and socialized for approximately two and a half hours. Plaintiff and some of the group then went to the mainland for approximately two hours, returning to the cottage between 12:30 and 1:00 a.m. Plaintiff stayed in the cottage for approximately half an hour, and then decided to go swimming. He walked to the pier along an unlighted path. When he reached the pier, he heard some of his companions in the water. There were no lights on the pier, and no appreciable moonlight. There were no signs posted relating to the depth of the water or relating to diving off the pier. Plaintiff did not know how deep the water was off the pier, although he estimated that it was approximately four feet deep. At no time during the evening had any of his companions, which included some of the defendants, warned him about the depth of the water or the danger of diving off the pier, although defendants had so warned other guests in the past.

As plaintiff approached the edge of the pier, he could see figures in the water. He noticed a female swimmer, and a male figure who appeared to be either standing in the water or hanging onto the pier. Plaintiff trotted down the pier, took a few running steps, and attempted a shallow dive, i.e., a head-first dive horizontally into the water with his hands and arms extended in front of his head. He did not trip on the pier or lose his balance in executing the dive. Immediately after plaintiff entered the water, he felt his head hit the bottom of the lake. He is now permanently paralyzed from the accident.

At the time of the dive, the lake was approximately three feet four inches to three feet six inches deep at the end of the pier. The defendants were aware of this water depth at the time of the injury, and knew that this depth was approximately four to six inches more shallow than normal.

Plaintiff had executed many flat dives into the shallow ends of swimming pools prior to the incident, and he had seen many other people do the same. He was also acquainted with swimming in natural lakes and knew that their depths varied, that some are shallow, and that not all lakes are the same depth 100 feet from shore. Plaintiff decided to attempt a flat dive into the lake in order to avoid hitting the bottom of the lake. He had never seen anyone injured from executing a flat dive into a shallow body of water, and was not aware that a person could suffer paralysis or a spinal cord injury from such a dive.

Plaintiff filed a complaint against the defendants alleging that he was an invitee on the property and that defendants' failure to warn him of the danger of executing a flat dive off the end of the pier amounted to negligence (count I). Plaintiff also alleged that he was a licensee on the property and that the defendants' failure to warn amounted to wilful and wanton misconduct (count II). The trial court entered summary judgment in favor of defendants with respect to both counts of plaintiff's complaint, and he appeals.

Initially we conclude that the trial court properly entered summary judgment in defendants' favor on count I of plaintiff's complaint, in which plaintiff alleged that he was an invitee upon the defendants' property. A social guest is not an invitee, but is instead a licensee. (Pashinian v. Haritonoff (1980), 81 Ill.2d 377, 379, 43 Ill.Dec. 21, 410 N.E.2d 21.) Plaintiff's deposition testimony reveals that plaintiff was invited upon defendants' property as a social guest. As a result, plaintiff was not an invitee upon the defendants' property. Contrary to plaintiff's argument, Grimwood v. Tabor Grain Company (1985), 130 Ill.App.3d 708, 710, 86 Ill.Dec. 6, 474 N.E.2d 920 did not establish a different rule than that set forth by the Illinois Supreme Court in Pashinian. Plaintiff's argument that the court should abolish the distinction between invitees and licensees was considered and rejected by the Illinois Supreme Court in Pashinian v. Haritonoff (1980), 81 Ill.2d 377, 379, 43 Ill.Dec. 21, 410 N.E.2d 21.

A person who is invited upon the private land of another as a social guest is deemed a licensee. (Pashinian.) A landowner owes a licensee only the limited duty to warn the licensee of concealed defects that are known to the owner, and his failure to do so constitutes wilful and wanton misconduct. (See, e.g., Northrup v. Allister Construction Co. (1987), 163 Ill.App.3d 221, 223-24, 114 Ill.Dec. 431, 516 N.E.2d 586; O'Donnell v. Electro-Motive Division of the General Motors Corp. (1986), 148 Ill.App.3d 627, 632-33, 102 Ill.Dec. 51, 499 N.E.2d 608; Zimring v. Wendrow (1985), 137 Ill.App.3d 847, 853, 92 Ill.Dec. 667, 485 N.E.2d 478; Fuller v. Justice (1983), 117 Ill.App.3d 933, 943, 73 Ill.Dec. 144, 453 N.E.2d 1133.) Thus, a "licensee must avoid open or obvious danger at his peril." (Lorek v. Hollenkamp (1986), 144 Ill.App.3d 1100, 1103, 99 Ill.Dec. 232, 495 N.E.2d 679.) Summary judgment is properly entered in favor of a defendant landowner when the undisputed facts of record, in conjunction with the reasonable inferences drawn therefrom, establish as a matter of law that the defendant owed no duty to the plaintiff because the danger causing the plaintiff's injury was not concealed, but was open and obvious. See, e.g., Northrup v. Allister Construction Co. (1987), 163 Ill.App.3d 221, 225, 114 Ill.Dec. 431, 516 N.E.2d 586.

In our view, the instant facts and the reasonable inferences which may be drawn from them demonstrate 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. As plaintiff himself was aware, natural lakes are of uneven depth at various points, and the muddy waters of a lake prevent a person from discerning the depth of the water. Thus a reasonable adult in plaintiff's position 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. The record here shows that plaintiff realized the importance of entering the water in such a way that he would avoid hitting his head on the lake bottom. Plaintiff argues that all reasonable adults believe a flat dive into shallow waters will not cause head injuries leading to paralysis. We disagree. In our view, the risk of paralysis from executing a flat dive from the pier into the uncertain depths of the natural lake was open and obvious in the instant case. Because the risk was open and obvious, defendants had no duty to warn plaintiff of that risk in the case at bar.

The decision by the Wisconsin Supreme Court in Scheeler v. Bahr (1969), 41 Wis.2d 473, 164 N.W.2d 310 supports our conclusion. In Scheeler, the plaintiff had been invited to defendant's lake-front cottage as a guest for recreational purposes. The plaintiff had never been to the cottage or the lake previously, and suffered paralyzing injuries when he dove from a pier 70 feet from shore into murky water that was approximately three feet deep. In concluding that the trial court properly...