Durham v. Forest Preserve Dist. of Cook County

• Decision Date: 10 February 1987
• Docket Number: No. 85-2787,85-2787
• Citation: 152 Ill.App.3d 472,105 Ill.Dec. 614,504 N.E.2d 899
• Parties: , 105 Ill.Dec. 614 Marilyn DURHAM, as Administrator of the Estate of Randell C. Durham, deceased, Plaintiff-Appellant, v. FOREST PRESERVE DISTRICT OF COOK COUNTY, a Body Politic and Corporate, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 899

504 N.E.2d 899

152 Ill.App.3d 472, 105 Ill.Dec. 614

Marilyn DURHAM, as Administrator of the Estate of Randell C Durham, deceased, Plaintiff-Appellant, v. FOREST PRESERVE DISTRICT OF COOK COUNTY, a Body Politic and Corporate, Defendant-Appellee.

No. 85-2787.

Appellate Court of Illinois First District, Second Division.

Feb. 10, 1987.

Nunc pro tunc Nov. 25, 1986.

Anesi, Ozmon, Lewin & Associates, Ltd., Chicago, Mark Novak, for plaintiff-appellant.

Donald Hubert and Associates, Chicago, Donald Hubert and James A. Roth, for defendant-appellee.

Justice BILANDIC delivered the opinion of the court:

Plaintiff's fourth amended complaint charged defendant, Forest Preserve District of Cook County, a Body Politic and Corporate, with wanton and wilful misconduct in the operation of Schiller Pond, where the decedent, Randell C. Durham, a 16-year-old, drowned. Defendant's motion for summary judgment was allowed. The sole issue presented for review is whether the trial court properly granted summary judgment.

On the morning of June 5, 1978, Randell C. Durham, decedent, and Robert Ross, both age 16, boarded a school bus to attend the Real School, an institution for delinquent children. They convinced the bus driver to let them off the bus close to Schiller Woods Forest Preserve, where they had an older friend purchase a quart of beer for Durham and a six-pak for Ross.

After finishing their beer, they decided to go for a swim in Schiller Pond. Schiller Pond was built as a flood control lake and had three "No Swimming" signs around its perimeter. Ross noticed one sign "not too far" from where the boys entered the water that warned "No Swimming." Schiller Pond was not an inviting pond for swimming because it had a mud bottom and contained leeches. It was a sunny day with the temperature in the 60's. The water was cold. In order to avoid the leeches, the boys carried a picnic table, located about 50 feet from the pond, to the pond and threw it in the water for a raft.

They asked two 16-year-old girls to join them on the raft, but they refused because the water was too dirty. The boys then floated out on the "raft" and began swimming. They began wrestling on the "raft," and both entered the water. Decedent grabbed on to the "raft," swam around, and then began to yell for help. Ross attempted to rescue him, but decedent, apparently in panic, fought him off. Decedent then sank into the water and Ross swam toward the shore, yelling for help. Two older men, who had been around the pond, jumped in the water and unsuccessfully attempted to locate decedent. Shortly thereafter, Forest Preserve District employees began dragging the pond in a row boat, and a helicopter and scuba divers were used to locate the body. When Durham's body was removed from the water, he was wearing long jeans.

The pond was from two feet to seven-and-one-half feet deep. There was no specific proof of prior drownings. However, Ross testified at his deposition that someone told him that they heard of a prior drowning.

Defendant's motion for summary judgment was supported by the depositions of Robert Ross, the friend who was the swimming companion of the decedent; of Dennis Bargamian, the bystander, who attempted to rescue the decedent; of Karl Weissbrodt, an employee of the Forest Preserve District, who held the title of serviceman at the time of the drowning; of Gerald O'Connor, who was, during the relevant time, the Superintendent of Maintenance and Operations of the Forest Preserve District; an affidavit of David McGinty, the fisheries biologist for the Forest Preserve District; and a diagram of the pond.

The trial court found an absence of duty on the part of defendant because the pond presented an "obvious and open danger" of which the decedent should have been aware.

Summary judgment should be granted by the trial judge "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ill.Rev.Stat.1983, ch. 110, par. 2-1005.

It cannot be said that a 16-year-old high school student was not of an age that allowed him to be at large. We find that Schiller Pond presented an obvious and open danger of which decedent should have been aware of and avoided. Therefore, defendant owed no duty to decedent as a matter of law.

I.

Plaintiff contends that the trial court erred in granting summary judgment based on the reasoning that as a matter of law defendant owed no duty to decedent. Defendant argues that summary judgment was appropriate because decedent fully appreciated and could have avoided the danger of entering Schiller Pond, and thus defendant owed no duty to decedent.

In Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177, plaintiff brought an action to recover for injuries sustained by a two-year-old who fell into a ditch under defendant's control. Noting that the doctrine of "attractive nuisance" no longer applied, but that ordinary negligence standards controlled, the court referred to the "dangerous condition" rule, which held that an owner or occupier of land has a duty to remedy conditions which, although harmless to adults, are dangerous to children who foreseeably wander onto the premises. The court noted that a "dangerous condition" is one "which is likely to cause injury to children generally, who, by reason of their age and immaturity, would not be expected to apprehend and avoid the attendant risk."

However, the court also noted that "this principle should not be construed to impose a duty on owners or occupiers to remedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions." Thus, the court determined that a duty will be imposed under ordinary negligence where an owner or occupier "knows or should know that children frequent the premises and if the cause of the child's injury was a dangerous condition on the premises." (Emphasis supplied.)

The court cited to the Restatements (Second) of Torts, noting that "there are many dangers, such as fire and water, * * * which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large." The court affirmed the dismissal of the action on the basis that the ditch posed no foreseeable harm to children.

Three Illinois water cases indicate that a pond similar to Schiller Pond constitutes a danger that the decedent could appreciate.

In Cope v. Doe (1984), 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023, a jury verdict in favor of a drowned boy's mother was reversed by the appellate court, which reversal was affirmed by the Illinois Supreme Court. There, a seven-year-old boy drowned when he broke through a partially ice-covered, man-made retention pond used for recreational purposes on the grounds of a highly populated apartment complex designed to "attract families with children." (102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023.) The evidence showed that children chased their dogs on the ice, ice skated, fished, walked and slid on the ice and kicked wood around on the ice (102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023); that the manager of the complex said children could fish and ice skate on the pond, and that the defendants knew children used the pond for recreational purposes; that the pond was so deep that one rescuer ceased his efforts "when the water level reached his shoulders" (102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023).

In Weber v. Village of Carol Stream (2nd Dist.1984), 129 Ill.App.3d 628, 84 Ill.Dec. 807, 472 N.E.2d 1203, appeal denied, 102 Ill.2d 560, summary judgment was granted in favor of defendant where a nine-year-old boy broke through the ice on a highly-populated, residential subdivision's man-made retention pond. 129 Ill.App.3d 628, 84 Ill.Dec. 807, 472 N.E.2d 1203.

In Prince v. Wolf (1st Dist.1981), 93 Ill.App.3d 505, 48 Ill.Dec. 947, 417 N.E.2d 679, defendant's motion for summary judgment was granted and affirmed on appeal where a 15-year-old boy drowned in a highly-populated condominium complex's man-made retention pond.

The key fact in Cope, Weber and Prince resulting in nonliability was the absence of a duty because the children in each case could appreciate the risk. Cope, 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023; Weber, 129 Ill.App.3d 628, 84 Ill.Dec. 807, 472 N.E.2d 1203; and Prince, 93 Ill.App.3d 505, 48 Ill.Dec. 947, 417 N.E.2d 679.

In the instant case, the drowning occurred in an ordinary pond as it did in Cope, Weber and Prince. Interestingly, this pond should have had as an added repellent a quality of dirtiness and a bad smell.

Durham was 16 years of age and thus older than any of the children in Cope (7 years old), Weber (9 years old), or Prince (15 years old). Regarding age, appreciating the risk is an objective test which focuses on children of similar age and experience. (Fuller v. Justice (2nd Dist.1983), 117 Ill.App.3d 933, 73 Ill.Dec. 144, 453 N.E.2d 1133.) Moreover, "any child of age to be allowed at large," is expected to appreciate an obvious and open danger. (Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177 (citing approval to Restatement (Second) of Torts § 339, comment j, at 203 (1965)). Cf. Cope v. Doe (1984), 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023; Prince v. Wolf (1st Dist.1981), 93 Ill.App.3d 505, 48 Ill.Dec. 947, 417 N.E.2d 679; Barbre v. Indiana Water Co. (Ind.App.1980), 400 N.E.2d 1142, 1146; Prosser, Handbook of the Law of Torts § 59, at 366-73 (3d ed. 1971).) Here, given the younger ages illustrated, Durham, at 16, would have...