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FIFTH DIVISION

September 14, 2001

No. 1-99-3704

JUSTICE QUINN delivered the opinion of the court:

In March of 1994 Delores Robinson filed a wrongful death andsurvival action on behalf of her son Ralph Robinson, a minor, deceased,against the defendant, Chicago Park District. The suit arose from theaccidental drowning of her son during an open swim at the defendant'spool. During the pendency of the action, Delores Robinson passed awayand the plaintiff, Derrick Robinson, was substituted as successoradministrator.

A jury found the defendant liable for negligence and returned averdict in favor of the plaintiff in the amount of $1,550,000. Thecourt entered judgment on the verdict on May 4, 1999. The defendantfiled a posttrial motion for judgment notwithstanding the verdict or,in the alternative, for a new trial. The court denied defendant'smotion and defendant now timely appeals.

On appeal, defendant alleges that it has statutory tort immunityunder Section 3-108(b) of the Governmental and Governmental EmployeesTort Immunity 745 ILCS 10/3-108(b)(West 1994), and therefore, the trialcourt committed reversible error by not directing a verdict in favor ofthe defendant. Defendant additionally alleges that the amount ofdamages is not supported by the evidence.

For the following reasons, we reverse.

I. BACKGROUND

On the afternoon of June 16, 1993, Ralph Robinson and three of hisfriends went to the Carver Park pool to go swimming. Carver Park pool,located at Carver Park, 939 East 132nd Place in Chicago, is owned andoperated by the defendant. The pool is enclosed by a glass structureand ranges in depth from 11 feet at its deepest to 3 feet at itsshallowest.

At approximately 3 p.m. Ralph and his friends arrived at CarverPark and went into the locker room to change into their swimsuits. Onthat afternoon, the pool had a posted open swim in progress and had twolifeguards, Charles Baskin and Kenneth Shores, scheduled to be on duty. Although Steve Davis, senior lifeguard, was at a meeting and not presenton the pool deck, both Baskin and Shores were present on the pool deckthat afternoon. After exiting the locker room, Ralph was given, andpassed, a lap test in order to swim in the deep end of the pool. Baskinadministered the test, which consisted of swimming two laps in the deepend and treading water. Ralph proceeded to the deep end of the pool,where he jumped off the diving board, treaded water, swam to the sideand exited the pool.

The relevant facts that led up to Ralph's drowning were relayed tothe jury through the testimony of occurrence witnesses James Griffin,one of Ralph's friends who had accompanied him to the pool, andlifeguard Charles Baskin.

Griffin testified that he arrived at the pool with Ralph Robinson,Darryl Harris and Kevin McClenton at approximately 3:30 p.m. thatafternoon. Griffin stated that he and his friends had been swimming atthe Carver pool on previous occasions . Griffin testified that aftershowering and changing in the men's locker room he proceeded out to thepool deck and entered the shallow end of the pool alone. Griffin statedthat there were two lifeguards on the pool deck at that time. At thattime, Griffin saw one of the lifeguards on the telephone and one of thelifeguards sitting on a steel bench talking to some people. Shortlyafter entering the pool, Griffin saw Ralph jump off the diving boardinto the deep end of the pool, swim to the edge, and then exit the pool. Griffin stated that he saw Ralph jump off the diving board a secondtime. Griffin testified that he was going under water while in theshallow end and was not watching the activities of the lifeguards at alltimes.

Griffin testified that he heard Darryl Harris, one of the otherboys who had accompanied them to the pool, yelling his name from thedeep end of the pool. Griffin saw Harris standing on the diving boardand pointing to the water. When Griffin walked to the deep end, he sawRalph lying on the bottom of the pool. Griffin testified that he beganyelling for a lifeguard and waving his hand. Harris jumped in but wasunable to retrieve Ralph. Griffin testified he and Harris were bothyelling and waving for a lifeguard at this point. Griffin stated thatBaskin looked over in their direction but failed to respond. Griffintestified that eventually Baskin dove into the pool and retrieved Ralph. Baskin began doing cardiopulmonary resuscitation (CPR) while Shores camerunning over with an oxygen tank.

Baskin testified that he had been a lifeguard for the Chicago ParkDistrict for 11 years. He stated at trial that he was certified fromthe American Red Cross and the Chicago Park District in life guardingat the time of the incident. Baskin testified that on June 16, 1993he was working the 1 p.m. to 10 p.m. shift at the Carver Park pool. Baskin testified that there was a posted open swim that day from 3 p.m.to 5:30 p.m. He testified that he had positioned himself on a steelbench which was located at the drop off point in the pool to observe"all of the shallow and all of the deep." Baskin maintained that, whilehe may have answered questions or explained rules to swimmers, he wasnot talking to anyone for any length of time while sitting on the bench. Baskin testified that he remembered giving Ralph his lap test thatday. Baskin knew Ralph because he was a regular at the Carver Park pooland a good swimmer. Baskin testified that after Ralph passed the swimtest, he saw him jump off the diving board into the deep end of thepool. Baskin stated that he saw Ralph jump off the board, go to thebottom of the pool, come up and tread water a couple of times. Baskintestified that after the last time he saw Ralph jump in, he did not knowhe was in distress until, while walking toward the deep end and makinghis 10-second count, he saw Ralph lying on the bottom of the pool. Baskin testified that he did not see Ralph in distress on the surfaceof the water or hear him, or anyone else, calling out for help at anypoint. Baskin then dove into the water and brought Ralph to thesurface. Baskin testified that Ralph was not breathing and had nopulse. At this point Shores ran up with a resuscitator and both menbegan CPR on Ralph. Ralph was resuscitated but died several days laterat Christ Hospital.

PROCEDURAL HISTORY

Prior to trial, on May 8, 1996, the defendant filed a motion forsummary judgment. The defendant contended that pursuant to the decisionrendered three weeks earlier by the Illinois Supreme Court in Barnettv. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996), therewere no genuine issues of material fact and therefore summary judgmentwas appropriate. Judge James Heyda heard the argument and denieddefendant's motion on the grounds that there were material fact issuesas to where the lifeguards were positioned. Defendant's motion forreconsideration or, in the alternative, certification of the questionfor interlocutory appeal was also denied by Judge Heyda. Defendantsought to renew its motion for summary judgment before the trial court. The trial court refused to consider the motion because of Judge Heyda'sprevious ruling. At the close of all the evidence the trial judgerefused to direct a verdict in favor of the defendant. The juryreturned a verdict in favor of the plaintiff in the amount of$1,550,000. Defendant filed a posttrial motion for judgmentnotwithstanding the verdict or, in the alternative, for a new trial. The motion was denied. Defendant now appeals.

II. ANALYSIS

Defendant maintains that the trial court committed reversible errorin refusing to direct a verdict in its favor. Defendant seeks judgmentnotwithstanding the verdict or, in the alternative, a new trial. "[V]erdicts ought to be directed and judgments [notwithstanding theverdict] entered only in those cases in which all of the evidence, whenviewed in its aspect most favorable to the opponent, so overwhelminglyfavors movant that no contrary verdict based on that evidence could everstand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229N.E.2d 504 (1967). A motion for directed verdict should be grantedwhere there is no evidence demonstrating a substantial factual disputeor where the assessment of the credibility of witnesses or thedetermination of conflicting evidence is not decisive to the outcome. Maple v. Gustafson, 151 Ill. 2d 445, 453-54, 603 N.E.2d 508 (1992). Inrecognition that trial courts are not to weigh evidence, resolveconflicts in evidence, or assess the credibility of witnesses, a rulingon a motion for directed verdict is subject to de novo review. Dunlapv. Alcuin Montessori School, 298 Ill. App. 3d 329, 340, 698 N.E.2d 574(1998).

A. STATUTORY IMMUNITY

Defendant argues that at the close of all the evidence "there wereno questions of fact left for the jury to decide that would serve to barthe Park District's statutory immunity under [section] 3-108(b) or thatwould impose liability on the Park District." Section 3-108(b) (745ILCS 10/3-108(b)(West 1994) states:

"Where a local public entity or public employeedesignates a part of public property to be used for purposesof swimming and establishes and designates by notice postedupon the premises the hours for such use, the entity orpublic employee is liable only for an injury proximatelycaused by its failure to provide supervision during the saidhours posted."

Specifically, defendant maintains that under Barnett, the IllinoisSupreme Court has unequivocally held that a public entity is immune fromnegligence and willful and wanton conduct when it has lifeguardspositioned on the pool deck. In this case it was an uncontested factthat there were two lifeguards on deck, and therefore, immunity wastriggered and a directed verdict was proper.

Plaintiff argues that Blankenship v. Peoria Park District, 269 Ill.App. 3d 416, 647 N.E.2d 287 (1994) carves out an exception to theblanket immunity provided under Barnett. Specifically, plaintiffmaintains that when the conduct of the lifeguards constitutes a"complete lack of supervision" the Act does not apply. Therefore,according to the plaintiff, it was proper to send the factual issue ofwhether the lifeguards' conduct in this case constituted a complete lackof supervision to the jury.

We hold that the trial court committed reversible error in denyingdefendant's motion for a directed verdict. The seminal case in Illinoisinterpreting section 3-108(b) (745 ILCS 10/3-108(b)(West 1994) isBarnett. In Barnett, Travis, a 10-year old boy, drowned in a parkdistrict pool during a posted open swim. As the court noted, there were6 lifeguards on duty that were "actively overseeing, directing, andmanaging the pool." Barnett, 171 Ill. 2d at 382-83. The record revealedthat Travis slipped while jumping off a diving board, hit his head andfell into the water. At least two patrons told lifeguards of Travis'distress but the "lifeguards dismissed their pleas and failed torespond." Barnett, 171 Ill. 2d at 383. It was a pool patron whoeventually dove in and pulled Travis to the surface. Barnett, asspecial administrator of the estate of Travis, brought a wrongful deathand survival action against the Zion Park District. The trial courtgranted summary judgment in favor of the defendant. On appeal, Barnettargued that the case was improper for summary judgment and that althoughlifeguards were on the pool deck, their supervision was so deficientthat the defendant failed to provide Travis with the "supervision" thatsection 3-108(b) requires.

The Illinois Supreme Court, in analyzing Barnett's claim,disagreed. First, the court noted that the case was appropriate forsummary judgment. Barnett labeled the question of whether thelifeguards provided "supervision" within the meaning of section 3-108(b)as a question of fact. The court stated this issue involvesinterpreting the Tort Immunity Act, "which is purely a matter of law andappropriate for summary judgment." Barnett, 171 Ill. 2d at 385; seeLane v. Titchenel, 204 Ill. App. 3d 1049, 1053, 562 N.E.2d 1194 (1990).Second, the court disagreed with Barnett's interpretation of section 3-108(b). "The legislature omitted from the plain language of section 3-108 any reference to the quality of supervision required thereunder. Thus, the legislature must have intended to provide unconditionalimmunity for liability when supervision is provided." Barnett, 171 Ill.2d at 392, 665 N.E.2d 808. In Barnett it was undisputed that 6lifeguards were provided and were physically present. The court notedthat Barnett's interpretation that the statute requires a particularlevel of supervision would effectively nullify the statute. "If section3-108(b) immunized only nonnegligent conduct, then there would be noneed for immunity because the conduct would not be actionable in thefirst place." Barnett, 171 Ill. 2d at 392.

The case at bar is directly analogous. Plaintiff is essentiallymaking the identical argument that was made, and rejected, by theplaintiff in Barnett. Plaintiff claims that the conduct of thelifeguards, although present on the pool deck, rose to the level of acomplete failure to provide supervision. Plaintiff is attempting tolimit the immunity granted under section 3-108(b) by reading a requisitelevel of supervision into the statute. The Illinois Supreme Court hasunequivocally declined to limit the immunity in such a way. In thiscase it was uncontroverted that two lifeguards were present on the pooldeck. After defendant requested a special interrogatory which statedthat at the time of the occurrence the defendant did have at least onelifeguard on the pool deck, the trial court itself noted "this isn't anissue***I would think the plaintiffs would stipulate that there's onelifeguard***that's not an issue." Therefore there was "supervision"within the ambit of Barnett, and the defendant is entitled to immunityunder section 3-108(b).

Plaintiff relies wholly on the decision in Blankenship for theproposition that immunity is improper when the lifeguard's conductconstitutes a complete lack of supervision. In Blankenship, a casewhich we note predates Barnett, this court held that the defendant wasnot entitled to immunity under section 3-108(b) because the lifeguardswere off-duty, not physically present at the pool, and not in a positionto see the pool. In that case, the plaintiff drowned during an "adultswim" at a public pool. There were three lifeguards on duty that day;however, during the adult swim, all three of the lifeguards went intoa small adjacent room where they were unable to see the pool. The parkdistrict's rules stated that the lifeguards could use "adult swim" forbreak time but one lifeguard must remain on duty. The court stated"[a]lthough three lifeguards were ostensibly on duty and were presentin the pool area, according to the complaint they were on a break andwere not in a position to observe the pool. This was not mereinattention or a momentary lack of vigilance; it was a complete absenceof supervision." Blankenship, 269 Ill. App. 3d at 424.

The case at bar is directly distinguishable. As stated previously,the defendant provided two lifeguards who were present on the pool deck. Charles Baskin and Kenneth Shores were on the pool deck, not in anadjacent room, when Ralph Robinson drowned. Both the plaintiff and thetrial court apparently are interpreting Blankenship to create a broadexception to Barnett which allows the jury to delve into a factualinquiry of degrees of supervision. We do not believe that Blankenshipstands for that proposition. The majority of plaintiff's argumentduring trial, and on appeal, is centered on the fact that Baskin andShores were preoccupied and not paying attention to the pool. Factswere introduced that Shores was on the telephone with his back to thepool, while Baskin was busy talking to girls on the bleachers. Thesefacts support plaintiff's theory of "inattention or lack of vigilance." Plaintiff argues that these facts bring this case within the ambit ofthe holding in Blankenship. We decline to find that Blankenship permitsthis type of factual inquiry. As interpreted by the supreme court inBarnett, Blankenship stands for the very limited proposition that whenlifeguards are not physically present on the pool deck, and, as a resultof their absence, they are unable to observe the pool, a completeabsence of supervision can be found. A strong argument could be madethat if lifeguards are present on the pool deck, but they are completelyincapacitated (i.e., unconscious, extremely intoxicated), a court couldfind a complete absence of supervision. The facts introduced byplaintiff in this case, taken as true, establish only that thesupervision in this case may have been inadequate. Barnett held thatunder section 3-108(b), the "adequacy" of the supervision is irrelevant. We interpret Barnett to hold that this supervision, adequate or not,entitles the park district to immunity.

A case that was decided after Barnett and Blankenship offersadditional support for this finding. In Dixon v. Chicago Board ofEducation, 304 Ill. App. 3d 744, 710 N.E.2d 112 (1999), this court heldthat because the school's swimming coach was on the pool deck when thedecedent drowned, "[w]e believe that [this] was 'supervision' ascontemplated by the immunity statute." Dixon, 304 Ill. App. 3d at 749.Citing to Barnett, this court noted that the plain language of section3-108(b) does not require a particular level or degree of supervision. "Had Blake and the volunteer lifeguard left the pool area while Tiffanywas in the water, the facts would fall within Blankenship." Dixon, 304Ill. App. 3d at 750.

In this case it was improper for the trial judge to charge the jurywith determining the level or degree of supervision provided by thedefendant. The defendant is immune from liability because it wasuncontroverted that two lifeguards were present on the pool deck. Therefore, the trial court should have directed a verdict in thedefendant's favor.

In further support of our holding, it should be noted that section3-108(b) was amended, effective December 2, 1998, to include a willfuland wanton exception. The statute now reads:

"(b) Except as otherwise provided in this Act, neithera local public entity nor a public employee is liable for aninjury caused by a failure to supervise an activity on or theuse of any public property unless the employee or the localpublic entity has a duty to provide supervision imposed bycommon law, statute, ordinance, code or regulation and thelocal public entity or public employee is guilty of willfuland wanton conduct in its failure to provide supervisionproximately causing such injury." (Emphasis added) Pub. Act90-805,