McClure v. Suter

• Decision Date: 23 August 1978
• Docket Number: No. 77-46,77-46
• Parties: , 20 Ill.Dec. 308 George E. McCLURE, Administrator of the Estate of Mark E. McClure, Deceased, Plaintiff-Appellant, v. Jessie D. SUTER and Virginia M. Suter, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1376

379 N.E.2d 1376

63 Ill.App.3d 378, 20 Ill.Dec. 308

George E. McCLURE, Administrator of the Estate of Mark E.

McClure, Deceased, Plaintiff-Appellant, v. Jessie D. SUTER and Virginia M. Suter, Defendants-Appellees.

No. 77-46.

Appellate Court of Illinois, Second District.

Aug. 23, 1978.

[20 Ill.Dec. 309] Moehle, Reardon, Smith & Day, Washington, for plaintiff-appellant

Fearer & Nye, James M. Regnier, Rochelle, for defendants-appellees.

WOODWARD, Justice:

Plaintiff-administrator, George McClure, brought this suit against defendants, Jessie and Virginia Suter, to recover damages in connection with the death of his son, Mark. The jury rendered a verdict in favor of defendants and plaintiff appeals.

Before considering the merits of this case, we observe that this case is before us for a second time. On the first appeal (Docket No. 75-144, Rule 23 Order filed August 4, 1976) we granted defendants' motion to dismiss the appeal without prejudice, finding that jurisdiction was lacking in this case as there was no evidence that judgment was ever entered on the verdict of the jury. Following that dismissal a written judgment order was entered on the verdict, and following the post trial motion, plaintiff has taken a timely appeal. We therefore will proceed to the substantive issues of this case.

Defendants owned the Virginia Lake Campground, located midway between Oregon and Byron, Illinois. The campground contained approximately 29 acres and had a small swimming lake at the entrance. An admission charge of $3.00 per night for a family of four was collected upon entrance to the campground, in return for which various activities were provided, including general camping, swimming, fishing and boating.

The swimming lake was man-made and was approximately 150 to 175 feet in diameter. The east end was strictly for small children; the west end of the lake was deep; it was sectioned off and a sign was posted that no swimming was allowed there. A large sign, located at the west end of the lake, listed the following regulations:

LAKE REGULATIONS

Swimming by adult supervision only

No children under 14 without an adult who can swim

No "ducking" or "rough housing"

No pets allowed in the water or on the beach

No long pants--swim suit or "cutoffs"

Hours--Dawn--9:00 P.M. for campers only

These regulations were also posted near the lodge and in the restrooms. The "adult swimming rule" was also on every camping receipt. No member of the campground staff was present at all times while someone was swimming; styrofoam lifebuoys were placed on either side of the lake.

Plaintiff testified he and his family arrived at the campground between 1:30 a. m. and 2:00 a. m. on September 5, 1971. The McClure children got up around 6:30 a. m., ate breakfast and engaged in various activities. About 30 to 40 minutes later, Mark, age 15, requested permission from his mother to go swimming with his brother, Steven, age 14, and two friends; according to plaintiff, Mark was an excellent swimmer. Plaintiff remained at the camper drinking coffee with friends until his son Steven came running back to the camper saying that Mark had gone down in the lake. Plaintiff returned to the lake with Steven. Several men went into the lake and brought Mark up. Attempts were made to revive Mark; ambulances arrived in about 15 to 17 minutes. On cross-examination plaintiff stated that he had not read the swimming regulations on the camping receipt nor had he inspected the swimming lake prior to the occurrence.

Mrs. Evelyn McClure's testimony was substantially the same as her husband's. She also stated that during the rescue operation someone threw a styrofoam "raft" out to the men and it broke in half, so a rope was used to pull the men and Mark to shore. On cross-examination she stated that she had allowed her son to swim unsupervised in areas other than defendants' campground. She did observe the swimming lake when the family arrived; she saw a regulation sign and as both her sons could swim and were 14 and 15 years old, she gave them permission to go swimming.

Steven McClure testified that after receiving permission Mark and he and two friends went to the shore of the lake; the water was cold and it took a while to get used to the water. The boys swam across the lake several times, then engaged in a game of tag. When it was Mark's turn to be "it" he started swimming from the far side of the lake towards the others; however, in about the middle, he stopped swimming and began splashing around. Mark then went under the water; Steven did not hear him cry out. At first no one did anything; then someone yelled to go and get Mark's parents. Steven swam back to shore and returned to his family's campsite. He returned to the lake with his parents and helped point out where Mark had gone down. He also observed the styrofoam "ring" break during the rescue operations.

Dr. Robert F. Dearborn testified that he was called to the defendants' campground where he confirmed Mark's death. According to Dr. Dearborn the body showed signs common to one who has drowned or who has been asphyxiated. On cross-examination, he stated he did not perform an autopsy and could not say definitely what the cause of death was.

It is plaintiff's position that defendants were negligent as a matter of law in not providing lifeguards and other necessary safety devices. The rule of law in Illinois places on the defendants the legal duty to make reasonable provisions and to take reasonable precautions to provide for the safety of their patrons. See Brumm v. Goodall (1958), 16 Ill.App.2d 212, 147 N.E.2d 699; Decatur Amusement Park Company v. Porter (1907), 137 Ill.App. 448.

Defendants' campground is a small scale operation; the admission fee for a family of four was $3.00 per night. Defendant Jessie Suter testified that his only staff consisted of his two teen-age sons and an unsalaried niece and nephew. A large sign advising campers of the "adult swimming rule" was posted by the lake and elsewhere on the grounds; in addition the rule was on the receipt given at the time the camping fee was paid. The swimming lake itself was relatively small and the deepest portion, approximately ten feet in depth, was sectioned off with a sign forbidding swimming in that area of the lake. Defendant Jessie Suter also testified that while most of their duties involved maintenance work, his staff did make periodic checks for children swimming unaccompanied by parents. While witnesses testified that a styrofoam buoy broke during rescue operations, there was no testimony as to the reason it broke, or that this caused the drowning of plaintiff's decedent.

Considering all of the factors outlined above we cannot say that the precautions and provisions regarding lake safety taken by the defendants were unreasonable as a matter of law.

Moreover, from the evidence presented the jury could have reasonably concluded that Mark could have died regardless of the presence of lifesaving personnel. By all the testimony Mark was an excellent swimmer. Without the benefit of an autopsy, Dr. Dearborn was unable to state the precise cause of death, and he admitted that there are many ways in which a person can die in the water that may not be related to drowning. The testimony of Mark's brother, Steven, indicated that when Mark went down in the lake, for a minute none of the boys perceived that anything was wrong. According to Dr. Dearborn, death could be imminent if one were denied oxygen for much more than a minute. There was also the testimony of plaintiff's witness, Gary Taylor, Director of Safety Programs for the American Red Cross, Rock River Chapter, that under the cloudy water conditions of the swimming lake, due to a storm the previous night, it would take several minutes to find, recover and begin artificial respiration on a swimmer who had gone down in that lake.

A reviewing court cannot substitute its judgment for that of the jury if there is sufficient evidence in the record to support the verdict. (Rhodes v. Oliva (1973), 13 Ill.App.3d 849, 301 N.E.2d 126.) As the jury could have reasonably concluded from the evidence that defendants were not negligent, the jury's verdict must stand. Next, plaintiff contends that the trial court erred in instructing the jury on the contributory negligence of plaintiff and his wife. The jury was instructed in pertinent part as follows:

"Plaintiff's Instruction No. 17.

Second, that GEORGE McCLURE and EVELYN McCLURE the parents of MARK E. McCLURE before and at the time of the occurrence were using ordinary care for the safety of MARK McCLURE:

Defendants' Instruction No. 2.

When I use the expression 'contributory negligence' I mean negligence on the part of the plaintiff that proximately contributed to cause the death.

Defendants' Instruction No. 3.

When I use the expression, 'contributory negligence', I mean negligence on the part of George E. McClure and Evelyn McClure that proximately contributed to cause the death.

Defendants' Instruction No. 4.

It was the duty of George E. McClure and Evelyn McClure, before and at the time of the occurrence, to use ordinary care for the safety of Mark E. McClure. This means it was the duty of George E. McClure and Evelyn McClure to be free from contributory negligence."

Plaintiff's objection to the instructions was that there was not enough evidence of contributory negligence on the part of the plaintiff and his wife to go to the jury. There was evidence that Mark was an excellent swimmer and that he was the required age for swimming without adult supervision under the campground regulations. However, there was also testimony that neither parent had inspected the lake prior to giving Mark permission to swim there; neither plaintiff nor his wife had discussed with Mark the dangers of swimming in unsupervised areas, nor had they discussed any of the campground swimming regulations with Mark prior to allowing him to swim in the lake.

...