Englund v. Englund

• Decision Date: 18 June 1993
• Docket Number: No. 2-92-0961,2-92-0961
• Parties: , 186 Ill.Dec. 57 Janet ENGLUND, Indiv. and as Special Adm'r of the Estate of Lauren Englund, a Minor, Deceased, Plaintiff-Appellant, v. Andrew ENGLUND and Dianne Englund, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 861

615 N.E.2d 861

246 Ill.App.3d 468, 186 Ill.Dec. 57

Janet ENGLUND, Indiv. and as Special Adm'r of the Estate of Lauren Englund, a Minor, Deceased, Plaintiff-Appellant, v. Andrew ENGLUND and Dianne Englund, Defendants-Appellees.

No. 2-92-0961.

Appellate Court of Illinois,

Second District.

June 18, 1993.

Rehearing Denied July 21, 1993.

Stewart D. Stoller, Steven E. Garstki (argued), Stoller & Garstki, Chicago, for Janet Englund.

James F. Best, Fraterrigo, Best & Beranek, Wheaton (argued), Joseph P. Bonaccorsi, Fraterrigo, Best & Beranek, Chicago, for Andrew Englund.

Presiding Justice INGLIS delivered the opinion of the court:

This appeal comes from an order of the circuit court of Du Page County granting summary judgment for Andrew and Dianne Englund (the homeowners) in a tort action brought by Janet Englund (plaintiff), individually and as special administrator of the estate of her deceased daughter, Lauren Englund (Lauren). Three-year-old Lauren drowned in the homeowners' above-ground swimming pool during a party on August 20, 1989. Plaintiff filed her suit on August 14, 1991, alleging causes of action under the Wrongful Death Act (Ill.Rev.Stat.1991, ch. 70, par. 1 et seq.) and the Survival Act (Ill.Rev.Stat.1991, ch. 110 1/2, par. 27-6), and requesting payment of expenses for which she became liable under the family expenses provision of the Rights of Married Persons Act (Ill.Rev.Stat.1991, ch. 40, par. 1015(a)(1)). The trial judge granted summary judgment for the homeowners and plaintiff appeals.

Plaintiff claims in this court that the homeowners owed Lauren a duty to protect her from unreasonably dangerous conditions existing in their backyard and that a material issue of fact exists regarding proximate cause. The homeowners argue that they had no duty to supervise Lauren at the party and that plaintiff's failure to watch Lauren adequately was the proximate cause of her death. We affirm.

The tragic facts of the case are these: The homeowners had a party to celebrate one of their children's birthdays on August 20, 1989, at the homeowners' house in Lombard. The house had a large deck connected to the back and an above-ground swimming pool in the backyard. The pool was about four feet deep, and there was a deck connected to the pool at the side of the pool that was furthest away from the house. The pool deck ringed the edge of the pool for about a quarter of the pool's circumference. The pool deck had a four-foot fence along its outer edges and was aligned in such a way that its surface area could be seen from the house deck.

The pool took up a good portion of the homeowners' yard. Next to the pool was a garage and behind the garage was a swing set with sand spread underneath it to eliminate mud under the swings. Because the sand area was behind the garage, very little of it could be seen from the house deck. A set of permanent wooden steps leading to the pool deck began just across from the sand area. At the top of the wooden steps was a gate with a latch. The gate, which was four feet high, was not self-closing. There was a dispute as to whether a small child could open the latch from outside the deck.

On the day of the incident, plaintiff, her husband, and their five children, including Lauren, came to the homeowners' house for the party in the mid to late afternoon. Plaintiff brought three pairs of child flotation aids called "water wings" for her children to use. At that time Lauren, her brother Patrick, and her sisters, Stephanie and Michelle, went into the pool, where a number of other children were already swimming. Plaintiff helped Lauren into the water. Lauren was wearing her water wings. While the children were swimming, plaintiff watched them either from the house deck or from the yard and twice noticed that the gate on the pool deck was open. During the party and up until the incident, other party guests including plaintiff's husband were coming and going between the house deck and the inside of the house.

Most of the children got out of the pool after swimming for about a half hour. Lauren dried off on the house deck and then went to play in the sand behind the garage. At this time, there were no adults near the pool or the sand area. Plaintiff checked on Lauren in the sand area after about five minutes and then returned to the house deck. She did not notice whether the pool deck gate was open or closed when she checked on Lauren in the sand area. After 10 to 15 more minutes passed, plaintiff again left the house deck to get her son Patrick from the pool and Lauren from the sand area so they could eat. Lauren was playing in the sand and appeared to be fine. Lauren said that she was not hungry and asked to be allowed to continue playing in the sand. Patrick exited the pool and went to the house deck with plaintiff.

Plaintiff returned to her seat on the house deck, which afforded her a view of the yard but not the sand area, and talked with her father-in-law. After 5 to 10 minutes, plaintiff got up from the house deck to chase down her two-year-old son Sean, who was running toward the pool deck. She caught him at the top of the pool deck stairs. The gate at the top of the stairs was open. Plaintiff then heard her son Patrick say, "Mom, something's wrong with Lauren." Patrick was outside the pool, holding Lauren's arm up out of the water. Lauren was facedown in the pool among various pool toys and rafts.

Plaintiff put Sean down, screamed for her husband and jumped in the pool. Lauren was taken out of the water and given CPR while paramedics were called. She was unconscious. Lauren was taken to the hospital where she died nine days later without ever regaining consciousness. Plaintiff noticed a red, protruding bruise on Lauren's right temple when she first saw Lauren at the hospital. Plaintiff did not see the bruise when she checked on Lauren in the sand area and did not know whether the bruise was present when Lauren was taken out of the pool.

Plaintiff brought this suit alleging, inter alia, that the homeowners were negligent in failing to supervise the children at the party; that the homeowners negligently constructed a defective pool deck that had no self-closing and self-locking gate and had permanent stairs rather than stairs that would swing up and lock out of the way; and that the homeowners negligently allowed pool toys to clutter the surface of the water after the children had left the pool. Plaintiff later claimed that the pool deck was also defective because it had a deck plank that would depress when stood upon. The safety instructions that came with the pool recommended that any pool deck be professionally manufactured; that ladders be either removable or of the type that swings up and out of the way, and that ladders be in the up position or removed when the pool is not in use; and that pools be protected by fences with self-closing and self-latching gates that do not allow toddlers to open the latches. Although plaintiff also alleges that the safety instructions accompanying the pool cautioned owners to remove flotation devices when the pool was not in use, we have not found such a precaution in the instructions in the record.

The trial judge granted summary judgment to the homeowners, stating, "Proximate cause was the lack of supervision that, in my opinion, shifted from the homeowner to the parents." The judge implicitly found that the homeowners had no duty to supervise Lauren under the circumstances.

Summary judgment should be granted when "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.1991, ch. 110, par. 2-1005(c).) Summary judgment "is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt." (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Further, summary judgment should not be granted where conflicting inferences can be drawn from the same set of facts. (Neumann v. Gloria Marshall Figure Salon (1986), 149 Ill.App.3d 824, 826, 102 Ill.Dec. 910, 500 N.E.2d 1011.) When deciding a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits on file strictly against the movant and liberally in favor of the movant's opponent. Winnetka Bank v. Mandas (1990), 202 Ill.App.3d 373, 387, 147 Ill.Dec. 621, 559 N.E.2d 961.

Plaintiff's main theory in this case is that Lauren climbed the stairs of the pool deck, entered the deck through the gate, tripped on the loose deck plank, bumped her head and fell or rolled into the pool, where she was obscured from view by the various pool toys left in the pool by the homeowners. If this had actually transpired, it would certainly be arguable that the homeowners should have fixed the loose plank or warned of its existence since a hidden, loose plank that depresses when stood upon would not reasonably be anticipated on a pool deck. However, whether Lauren encountered the loose plank at all is pure speculation, as are questions whether the loose plank caused Lauren to fall or whether Lauren's weight was sufficient to depress the plank. It is just as probable that Lauren fell into the pool while reaching for a pool toy floating near the edge of the pool.

With regard to this theory of plaintiff's, the case of Kimbrough v. Jewel Cos. (1981), 92 Ill.App.3d 813, 48 Ill.Dec. 297, 416 N.E.2d 328, is instructive. There, a woman slipped and fell on a ramp while leaving a grocery store. She did not know what caused her to fall and she produced no witnesses to the fall. She did notice grease spots in the general area of her fall, but did not know if she had stepped on one. The trial court granted summary judgment for the store owner. (Kimbrough, 92 Ill.App.3d at 814, 48...