Suchy v. City of Geneva

• Decision Date: 28 March 2014
• Docket Number: No. 2–13–0367.,2–13–0367.
• Citation: 8 N.E.3d 565,2014 IL App (2d) 130367,380 Ill.Dec. 395
• Parties: William SUCHY, Independent Adm'r of the Estate of Randy Suchy, Deceased, Plaintiff–Appellant, v. The CITY OF GENEVA, The Geneva Park District, and The County of Kane, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 130367

8 N.E.3d 565

380 Ill.Dec. 395

William SUCHY, Independent Adm'r of the Estate of Randy Suchy, Deceased, Plaintiff–Appellant,

v.The CITY OF GENEVA, The Geneva Park District, and The County of Kane, Defendants–Appellees.

No. 2–13–0367.

Appellate Court of Illinois,

Second District.

March 28, 2014.

David C. Wise, Burke Wise Morrissey & Kaveny, Chicago, for appellant.

Amanda M. Hillmann, Knight, Hoppe, Kurnik & Knight, Ltd., Rosemont, for appellee City of Geneva.

Edward F. Dutton, Park District Risk Management Agency, Lisle, for appellee Geneva Park District.

Joseph H. McMahon, State's Attorney, St. Charles (Joseph F. Lulves, Assistant State's Attorney, of counsel), for appellee County of Kane.

OPINION

Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 In 2011, decedent, Randy Suchy, died after he jumped into the Fox River in Geneva to save a drowning boy. Subsequently, plaintiff, William Suchy, as the independent administrator of decedent's estate, brought a personal injury/wrongful death action against defendants, the City of Geneva (City), the Geneva park district (Park District), and the County of Kane (County). The trial court dismissed plaintiff's complaint with prejudice, finding that: (1) the hidden danger from the aerated water in the river was an open and obvious danger; and (2) the municipalities were immune from liability pursuant to section 3–110 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3–110 (West 2012)). Plaintiff appeals, arguing that: (1) the trial court failed to undertake a traditional duty analysis to determine whether defendants owed a duty; (2) the deliberate-encounter exception to the open-and-obvious doctrine applies and raises a factual question precluding dismissal; and (3) section 3–110 of the Tort Immunity Act does not immunize defendants from liability, where the Park District exercises control of the river and the site of decedent's death, the City has statutory jurisdiction over the river as well as the right to deny access, and plaintiff properly alleged that the County controlled the river. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Plaintiff's Complaint

¶ 4 In his seven-count complaint, filed in 2012, plaintiff alleged as follows. For many years prior to August 5, 2011, in the Fox River, there was a low head dam commonly known as the Geneva Dam. The dam created extremely dangerous and potentially deadly currents in the water downstream, and defendants knew this and knew that many people are injured each year by drowning or nearly drowning at the downstream side of dams such as the Geneva Dam. Defendants knew that it was unsafe and potentially lethal for children or adults to be in the dam's downstream water, and they knew that the water and the land in close proximity to it could not be safely used. Defendants also knew that children and adults were unaware of the dangers of low head dams. Defendants purposefully and intentionally configured their land to cause children and adults to use the land in close proximity to the downstream water. Defendants had been repeatedly told that the access they provided to the downstream side of the dam was dangerous, but they persisted in causing access to the land in close proximity to the downstream side of the dam. Defendants had also been told that warning signs were inadequate to apprise children and adults of the dangers of using the land, and they refused to repair the signs or install new ones.

¶ 5 On August 5, 2011, Evan Schultz, age 12, was using the land in close proximity to the downstream side of the dam. Decedent saw Schultz drowning at the downstream side and jumped into the water to save the boy's life. He saved Schultz's life, but sustained injuries that resulted in his death. Plaintiff also pleaded that Schultz and decedent were intended and permitted users of defendants' property.

¶ 6 In his wrongful death counts (740 ILCS 180/1 et seq. (West 2012)) (counts I, III, and V), plaintiff alleged that defendants supervised, maintained, operated, managed, and controlled the river in one or more of the following ways: (1) the City exercised its rights to grant or deny access to third parties who wished to use the river, declared various activities unlawful (swimming, walking, standing, fishing, boating, or being in the river in certain locations and within a certain distance from the dam ¹), and had the power to participate in and object to modifications of the dam or its removal; (2) the Park District declared its control over all bodies of water located in or adjoining a park (and the river adjoins Old Mill Park, Bennett Park, and Island Park); exercised its rights to grant or deny access to third parties who might use the river; declared its authority to allow swimming, wading, and bathing only in accordance with its rules, regulations, and restrictions; declared various activities (swimming, wading, standing, and bathing) unlawful, except as designated by the Park District board and in accordance with its rules, regulations, and restrictions promulgated and posted; and declared that it had the power to grant or prohibit fishing in the river; and (3) the County had the power to take water from the river; participated in decisions as to how to modify or remove dams in the river; exercised its powers of protecting and managing the water quality and level therein; protected and managed the river for its beneficial use; protected and preserved water supplies for current and future generations; exercised its powers of preserving and improving the river to maximize its potential for wildlife, recreation, and other uses; and had the power to participate in and object to modifications of the dam or its removal.

¶ 7 Plaintiff further alleged that defendants acted willfully and wantonly and with a conscious indifference and utter disregard for the safety of others in one or more of the following ways: (1) persisting in causing and encouraging children and adults to use the land in close proximity to the downstream side of the low head dam when they knew that it was unsafe to do so; (2) refusing to close off access to the downstream side of the low head dam when they knew that closing off such access was reasonably necessary for safety and to prevent children and adults from being killed; (3) refusing to repair or maintain signs warning children and adults of the deadly dangers of the land in close proximity to the downstream side of the low head dam and warning all persons to stay out of the water in close proximity to the downstream side of the dam; ² (4) failing to maintain adequate or reasonable fencing to prevent persons from entering the water in close proximity to the downstream side of the dam; and (5) failing to maintain adequate lifesaving devices in the area of danger at the dam.

¶ 8 According to plaintiff, as a proximate result of one or more of these willful and wanton acts and omissions, committed with conscious indifference and utter disregard for the safety of others, decedent suffered injuries that resulted in his death. He left surviving him brothers and sisters, all of whom sustained a loss of love, society, and companionship.

¶ 9 In his survival action counts (755 ILCS 5/27–6 (West 2012)) (counts II, IV, and VI), plaintiff realleged the allegations in his wrongful death counts and further asserted that decedent sustained personal injuries resulting in his death, including conscious pain and suffering, which would have entitled him to bring a cause of action and that this cause survived him.³

¶ 10 As to the County, plaintiff additionally alleged (in counts V and VI) that the municipality was responsible for planning and managing groundwater, surface water, potable water supplies, rivers, streams, floodplains, and wetlands. The County submitted a report to the state, describing various dam-related deaths and injuries. It further developed a countywide water protection plan for preserving and improving water quality in the river in order to maximize recreational use of the river. Plaintiff further alleged that the County disbursed to its citizens potable water from the river through public water supply systems. The County undertook restoration, construction, and improvement projects on the river, including, but not limited to, installation of tools to hold the toe of the sloop to minimize erosion and restoration of dams that cause stream erosion. The County further removed or planned for removal of several dams located on the river, including the North Batavia Dam, the South Batavia Dam, and the Brewster Creek Dam.

¶ 11 B. Defendants' Motions

¶ 12 Defendants moved to dismiss plaintiff's complaint. The Park District, on October 4, 2012, brought a combined motion under section 2–619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619.1 (West 2012)). Pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2012) (pleading insufficient in law)), the Park District argued that: (1) it owed no legal duty to warn of or protect against the risks presented by the river, as such risks are considered open and obvious as a matter of law to any person old enough to be allowed at large; (2) it owed no legal duty to inspect, repair, warn of, or protect against any allegedly unsafe conditions of the river and/or dam, as plaintiff did not adequately allege that the Park District owned or controlled either the river or the dam; and (3) pursuant to section 3–102(a) of the Tort Immunity Act (745 ILCS 10/3–102(a) (West 2012) (“a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or...