Hagy v. McHenry County Conservation Dist., 2-89-0039

• Decision Date: 26 October 1989
• Docket Number: No. 2-89-0039,2-89-0039
• Citation: 546 N.E.2d 77,190 Ill.App.3d 833,137 Ill.Dec. 453
• Parties: , 137 Ill.Dec. 453 Bradley HAGY, a Minor, by his Mother and Next Friend, Linda Hagy, Plaintiff-Appellant, v. McHENRY COUNTY CONSERVATION DISTRICT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 77

546 N.E.2d 77

190 Ill.App.3d 833, 137 Ill.Dec. 453

Bradley HAGY, a Minor, by his Mother and Next Friend, Linda Hagy, Plaintiff-Appellant, v. McHENRY COUNTY CONSERVATION DISTRICT, Defendant-Appellee.

No. 2-89-0039.

Appellate Court of Illinois Second District.

Oct. 26, 1989.

Francis Patrick Murphy (argued), Thomas A. Demetrio, Corboy & Demetrio, P.C., Chicago, for Bradley Hagy.

Vette E. Kell (argued), Robert S. Phillips, Kell, Nuelle & Loizzo, Woodstock, for McHenry County Conservation Dist.

Presiding Justice UNVERZAGT delivered the opinion of the court:

The plaintiff, Bradley Hagy, appeals the order of the circuit court of McHenry County granting defendant McHenry County Conservation District's motion for summary judgment on the basis the district owed plaintiff no duty as a matter of law. We affirm.

Plaintiff was a ninth-grade student at Grant Community High School and had spent the better part of May 28, 1981, in school. After school, he went home and then rode his bicycle to his grandmother's house. After visiting with his grandmother, he set out on his bicycle for "the swimming hole," which was located at a bend on Nippersink Creek, about 1,000 feet from the end of Prospect Avenue in Spring Grove, Illinois. His mother and grandmother both told him to be careful when he told them he was going to the swimming hole. Nippersink Creek is a moderate-flow stream, 5- to 6-feet deep with some areas 10- to 12-feet deep. The area of the swimming hole is remarkable in that, at the bend in the river, there is an embankment of 8 to 12 feet in height at a 90-degree angle with the plane of the land. The embankment was built in the 1900's as a dike in order to create a pond and has not been changed since save for natural erosion. There were no other similar structures in close proximity, and by May 28, 1981, the dike had partially eroded into the swimming hole. The district acquired title to this and other parcels in the area in 1980 intending to leave the area in its natural state, and no picnic, recreational areas or nature trails had been developed.

The plaintiff arrived at the swimming hole by riding his bicycle along a worn path from the end of Prospect Avenue. He saw no signs or fences along the path. He did not know who owned the area, but he thought it was "like a park area, you know, just a regular swimming hole." Plaintiff visited the area of the swimming hole many times in the past and had dived and swum there on numerous occasions, including twice a week in the previous summer. He also had walked at least a mile up and down the banks of the creek and had swung out over the creek in a tire that was tied to a tree, but he had not swam in any other area of the creek. Plaintiff learned to swim several years prior to the accident. He swam on a regular basis at the Boys' Club camp in Salem, Wisconsin, and attended this camp annually from age 7 to age 13. Although he knew how to swim before he went to camp, he received swimming instructions during the six years he attended camp, and his swimming experience included swimming at beaches and lakes. He admitted to doing "a lot of diving" before the date of the accident, including diving into a lake. Though his diving ability was self-taught, he knew how to do various types of dives such as back flips, forward flips, the jackknife, swan dive and the straight dive. On the day of the accident, he was attempting a straight dive.

It was the plaintiff's first trip to the swimming hole that year. He found several of his friends at the swimming hole upon his arrival. They were sitting on the grass about 10 to 12 feet to the left of the embankment. As plaintiff was coming up to the grassy area, he saw his friend, Rob Katherin, dive from the embankment into the creek and saw him emerge from the creek downstream about 10 to 15 feet from where plaintiff's friends were sitting. Plaintiff talked with his friends a while, then went to the top of the embankment and dove head first with his hands above his head into the creek and out about three to four feet from the bank. It did not occur to him to check the depth of the creek before he dove in, and he stated no one there suggested he check the depth of the water before diving. Plaintiff stated the reason he dove in instead of jumped in was because he had dived there before. Plaintiff's head struck the creek bed, breaking his neck, and he is now a quadriplegic.

Plaintiff's complaint alleged the district owned and controlled the land and creek and that it held same out to the public as being reasonably safe for use by the public; that it was the district's duty to exercise reasonable care and diligence to keep and maintain said land and creek in a reasonably safe condition; that it nevertheless caused or permitted "the existence of a dangerous condition, namely a high embankment overlooking a segment of said creek, said segment containing an area several feet in circumference which is approximately five to six feet deeper than the surrounding ground level existing at the bottom of said creek bed, said segment further giving the appearance that the depth of said creek was uniform from the vantage point of said embankment, due to the muddy condition of the water in said creek"; that the district had notice and knowledge of the existence of the dangerous condition and that the general public frequented the land for recreational purposes including, but not limited to, hiking, swimming and diving from the embankment; that the district negligently breached its duty of care by failing to warn of the dangerous condition or to prohibit swimming or diving, by permitting the existence of the dangerous condition, by failing to inspect the bottom of the creek, and by maintaining the land in a condition unsafe for members of the public; and that as a proximate result of one of more acts of negligence, he was injured.

The district answered, admitting ownership and control of the land and knowledge that members of the general public used the land for recreational purposes. It subsequently moved for summary judgment, arguing that it owed no duty to the plaintiff to remedy a condition which presented an obvious risk. The district's motion was supported by the discovery depositions of plaintiff, Edward Kattner, a resident of the area in question, Kenneth Fiske, then executive director of the McHenry County Conservation District, the statements of Linnae Kaminski and Jeffrey Collins, who were present when plaintiff's injury occurred, and various plats, surveys and photos of the area of the creek and embankment. Plaintiff's response to the motion for summary judgment included an affidavit of Dr. M.A. Gabrielsen. The affidavit set forth his qualifications as an aquatic safety and recreation expert and his expert opinions that the dangerous condition was not open and obvious since the effect of the ongoing erosion process was hidden and concealed below the surface of the moderate-current always-muddy water, and that the man-made levee (the embankment) caused a slower current which, combined with the height of the levee and the bend in the creek, made a perfect swimming spot which should have been posted with adequate warning signs and controlled. On motions of the parties, the court struck Kaminski's and Collins' statements and Dr. Gabrielsen's affidavit, and it granted the district's motion for summary judgment.

The plaintiff raises these issues: (1) whether the trial court erred in expanding the dangers deemed obvious to children to include the risk of injury from diving into water; (2) whether the trial court erred in striking the affidavit of his expert, Dr. M.A. Gabrielsen; and (3) whether the trial court erred in granting the defendant's motion for summary judgment.

Obviousness of the Danger

Plaintiff acknowledges the abandonment in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, of the "attractive nuisance" doctrine and its replacement with the customary rules of ordinary negligence--i.e., the foreseeability of harm--in determining the liability of landowners and occupiers of land for injuries caused by conditions on the land to children who enter upon it. Plaintiff also notes the exception identified in Kahn that a duty not imposed under the rules of ordinary negligence will be imposed, however, "where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risks involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it." Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 625, 126 N.E.2d 836.

This exception has not been interpreted to mean that owners or parties in possession and control of premises are duty-bound to remedy all conditions on the land. It is clear there is no duty to remedy a dangerous condition which presents an obvious risk which children would be expected to appreciate and avoid. Cope v. Doe (1984), 102 Ill.2d 278, 286, 80 Ill.Dec. 40, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 326, 22 Ill.Dec. 701, 383 N.E.2d 177.

Plaintiff notes three risks or dangers which have been identified as being obvious to children are those of fire, water, and falling from a height, citing Corcoran and Cope, which approved of the comments set forth in section 339 of the Restatement of Torts. (Corcoran, 73 Ill.2d at 327, 22 Ill.Dec. 701, 383 N.E.2d 177; Cope, 102 Ill.2d at 286-87, 80 Ill.Dec. 40, 464 N.E.2d 1023; Restatement (Second) of Torts § 339, comment j, at 203 (1...