Ross v. U.S.
| Decision Date | 10 October 1990 |
| Docket Number | No. 89-3318,89-3318 |
| Citation | 910 F.2d 1422 |
| Parties | Ollie Belle ROSS, individually and as Administrator of the Estate of William Ross, deceased, Plaintiff-Appellant, v. UNITED STATES of America, County of Lake in State of Illinois, Clinton O. Grinnell, Sheriff of Lake County, * Gordon Johnson, Deputy Sheriff, City of Waukegan, Waukegan Fire Department and Paramedics, and Waukegan Lifeguards, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Forrest L. Ingram, Kalish & Associates, Victor Potysman, Chicago, Ill., for plaintiff-appellant.
Daniel P. Field, Louis W. Brydges, Sr., Brydges, Riseborough, Morris, Franke & Miller, Waukegan, Ill., Nicholas Anaclerio, Jr., Darrell S. Dudzik, Brydges, Riseborough, Morris, Franke & Miller, Chicago, Ill., for County of Lake in State of Ill., Robert H. Babcock and Gordon Johnson.
Robert S. Markin, Jenner & Block, Chicago, Ill., for City of Waukegan.
Jeffrey D. Colman, Robert S. Markin, Glenn K. Seidenfeld, Jenner & Block, Chicago, Ill., for Waukegan Fire Dept. and Paramedics and Waukegan Lifeguards.
Anton R. Valukas, U.S. Atty., Gillum Ferguson, Asst. U.S. Atty., Office of the U.S. Atty., Chicago, Ill., for U.S.
Before WOOD, Jr., and RIPPLE, Circuit Judges, and CRABB, District Judge. **
The allegations in the plaintiff's complaint portray a stunning abuse of governmental power. Because we review this case after successful motions for summary judgment and for dismissal of the complaint, we have taken the facts in the light most favorable to the nonmoving plaintiff and have drawn all possible inferences in her favor. Thus, we have outlined the facts with these principles in mind, and our recitation should not be interpreted as an opinion on the veracity of any of the plaintiff's allegations. In addition, it should be remembered that none of the actors in this tragedy have had their day in court to disprove the plaintiff's claims.
On August 11, 1985, the city of Waukegan, Illinois, held the Waukegan Lakefront Festival on the shores of Lake Michigan. Twelve-year old William Ross attended the event but abandoned the day's organized activities for a stroll with a friend on a breakwater that extended out into the lake. At the tip of the breakwater, William fell into the water and sank. Immediately, William's friend ran for help.
The plea of William's friend was answered promptly by on-duty Waukegan emergency personnel located at the nearby festival. Within ten minutes of William's entry into the water, two lifeguards, two firefighters, and one police officer were on the scene with equipment to effect a rescue. In addition, two nearby scuba-diving civilians offered the assistance of themselves, their boat, and their equipment.
Before any rescue attempt could begin, however, Lake County Deputy Sheriff Gordon Johnson arrived in a marine patrol boat. The city of Waukegan and Lake County had previously entered into an intergovernmental agreement that required the county to provide all police services in the entities' concurrent jurisdiction on Lake Michigan. Under its authority to police the lake, the county and its sheriff had promulgated a policy that directed all members of the sheriff's department to prevent any civilian from attempting to rescue a person in danger of drowning in the lake. This policy contemplated that only divers from the city of Waukegan Fire Department could carry out such a rescue.
With this policy in mind, Deputy Johnson ordered all of the persons then on the scene to cease their rescue efforts. When the civilian scuba divers stated that they would attempt the rescue at their own risk, Johnson responded that he would arrest them upon their entry into the water and even positioned his boat so as to prevent their dive. A Waukegan police officer agreed that Johnson had authority over the scene and advised his fellow city employees that they should heed Johnson's instructions.
A full twenty minutes after the initial rescuers arrived at the scene and approximately thirty minutes after the boy had fallen into the water, the officially authorized divers finally retrieved William's body. Although William showed clinical signs of life after being pulled from the water, he was declared dead the following morning. For purposes of our decision, we must assume that William would have survived had Deputy Johnson not stopped the initial rescuers.
The United States Army Corps of Engineers built and maintained the breakwater. At the point where William fell off, part of the breakwater had broken away and had exposed a large crack. At the crack, the pitch of the breakwater's sloping angle suddenly became more pronounced and likely contributed to William's fall. Although the Army Corps of Engineers was aware of the breakwater's condition, it did nothing to repair the crack.
William's mother, Ollie Belle Ross, brought this suit in her individual capacity and in her capacity as administrator for William's estate. 1 Because the Army Corps of Engineers owned the breakwater, the complaint named the United States of America as one defendant. Under 42 U.S.C. Sec. 1983, the plaintiff sued Deputy Johnson in both his individual and official capacity, alleging that Johnson violated William's civil rights by interposing state power to prevent rescue. The city of Waukegan, 2 the sheriff of Lake County, and the county itself were sued for promulgating policies that led Deputy Johnson to prevent William's rescue. In addition, the plaintiff asserted pendent state-law claims against the nonfederal defendants. The plaintiff voluntarily dismissed with prejudice her claims against other defendants not relevant to this appeal.
The case was referred to a magistrate, who heard motions to dismiss by all nonfederal defendants. The magistrate recommended that the district court deny these motions, and Judge Bua adopted this recommendation. Unsuccessful on his motion to dismiss the complaint for failure to state a claim, Deputy Johnson asserted qualified immunity and moved for summary judgment, but because the same law firm represented the potentially conflicting interests of the deputy and the county, the plaintiff moved that the law firm be disqualified. The magistrate denied the motion to disqualify but recommended that the district court grant Deputy Johnson's motion for summary judgment. While these proceedings were taking place, the case was reassigned from Judge Bua to Judge Zagel.
Judge Zagel adopted the magistrate's recommendation and granted summary judgment to Deputy Johnson. Hoping to cure defects, the plaintiff filed a first amended complaint. The nonfederal defendants then received leave to file a renewed motion to dismiss the complaint, which Judge Zagel granted. See Ross v. United States, 697 F.Supp. 974 (N.D.Ill.1988). At the same time, the United States successfully sought dismissal of the claims against itself. See id. at 981-83. In a subsequent, unpublished decision, Judge Zagel considered retaining jurisdiction over the plaintiff's state-law claims but ultimately decided that these claims should be dismissed without prejudice to refile in state court. On the grounds that no defects in the pleadings could be cured, the plaintiff was also denied leave to file a second amended complaint.
Ross has now appealed the district court's decision to this court, asserting that the district court made various errors as to each of the defendants. Specifically, she claims that the district court erred in dismissing the substance of her complaint and in ruling that Deputy Johnson was entitled to qualified immunity. Also, Ross argues that she should have been allowed leave to file a second amended complaint and that the county's law firm should be disqualified from further representation of either the county or Deputy Johnson. Finally, Ross claims that because of the advanced state of the litigation, the district court at least should have retained jurisdiction over her pendent state-law claims.
The plaintiff's claim against the United States arises under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680, and relies on the status of the United States as owner of the breakwater. Under these circumstances, the federal government is liable to the same extent that a private landowner would be liable under Illinois law. See 28 U.S.C. Secs. 1346(b), 2674.
Private Illinois landowners do not guarantee the safety of children on their land. A landowner is under a duty to protect children from negligence only if (1) the landowner knows that children frequent the premises and (2) a dangerous condition exists on the land that is likely to cause injury to children who, by reason of their immaturity, are incapable of appreciating the risk involved. Cope v. Doe, 102 Ill.2d 278, 286, 464 N.E.2d 1023, 1027, 80 Ill.Dec. 40, 44 (1984); Corcoran v. Village of Libertyville, 73 Ill.2d 316, 326, 383 N.E.2d 177, 180, 22 Ill.Dec. 701, 704 (1978).
Even assuming that the United States government, acting through the Army Corps of Engineers, should have known that children frequented its breakwater, the plaintiff cannot show that William was incapable of appreciating the risk involved. The risk involved in this case was the possibility that William would fall off the breakwater and drown. Agreeing with the Restatement (Second) of Torts, a legion of Illinois cases have held that the risk of drowning is one generally appreciated by children, even children of a much lesser age than twelve-year old William. E.g., Cope, 102 Ill.2d at 286-87, 464 N.E.2d at 1027, 80 Ill.Dec. at 44 (seven-year old boy); Wingate v. Camelot Swim Club, Inc., 193 Ill.App.3d 963, 964-67, 550 N.E.2d 665, 666-67, 140 Ill.Dec. 780, 781-82 (1990) (); Hagy v....
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