Yarborough v. City of Springfield , 2023 IL App (4th) 220025-U ( 2023 )

NOTICE 2023 IL App (4th) 220025-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-22-0025 February 22, 2023
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
MARY YARBOROUGH, Individually and as Special ) Appeal from the
Administrator of the Estate of Eric M. Jones, ) Circuit Court of
Plaintiff-Appellee, ) Sangamon County
v. ) No. 08L176
THE CITY OF SPRINGFIELD, )
Defendant-Appellant. )
) Honorable
) Ryan M. Cadagin,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Lannerd and Knecht concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying defendant’s motion for judgment
notwithstanding the verdict.
¶2 In July 2008, plaintiff, Mary Yarborough, individually and as special administrator
of the estate of her 16-year-old son, Eric M. Jones, filed the wrongful death suit at issue in this
case against City Water Light and Power (CWLP) and the City of Springfield (City) after Eric
drowned at a public beach at Lake Springfield (the beach). In January 2015, plaintiff filed a
second-amended complaint which named the City as the sole defendant. In February 2015, a jury
returned a verdict in plaintiff’s favor. The City appealed, and this court reversed the trial court’s
judgment and remanded the case for further proceedings, holding the trial court abused its
discretion in admitting as evidence an internal policy regarding lifeguard placement at the beach.
Yarborough v. City of Springfield, 2016 IL App (4th) 150336-U, ¶ 75. On remand, after a second
trial, a jury again returned a verdict in plaintiff’s favor. On January 5, 2022, the trial court denied
the City’s motion for judgment notwithstanding the verdict. The City appeals, arguing its motion
for judgment notwithstanding the verdict should have been granted because it is entitled to
immunity pursuant to the Local Governmental and Governmental Employees Tort Immunity Act
(Act) (745 ILCS 10/1-101 et seq. (West 2006)). We affirm.
¶3 I. BACKGROUND
¶4 At the second jury trial in May 2021, the parties stipulated the employees at CWLP
and the beach were agents of the City. The parties also stipulated Eric Jones died from asphyxia
by drowning.
¶5 Douglas England testified he was the utility property manager for CWLP and
involved in the operation of the beach when Eric drowned in July 2007 but was not present and
had no personal knowledge of what occurred. England was not a lifeguard and had no expertise
with regard to a lifeguard’s job. Prior to overseeing the beach, he had never managed an
open-water facility or a pool. England testified he did not hire anyone at the beach but made sure
the beach employees had what they needed to perform their duties. When the beach was open, he
would check in once or twice per day. His position outranked the beach managers and lifeguards.
He had the authority to direct the beach employees. However, he was not involved in the training
or certification of the lifeguards. He did not know if the lifeguards were given training manuals.
¶6 England testified the beach managers made sure the beach operated appropriately
and were to report any serious problems to England. Like England, the beach managers also did
not supervise the lifeguards with regard to rescues, supervising the patrons, or on-site lifeguard
training. England did not know if the beach managers in 2007 were certified lifeguards.
¶7 England believed a procedure was in place for locating missing persons and bathers
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at the time Eric drowned, which included clearing the water, checking the facilities for the person,
and starting a line search in the water if the person was not found. He had heard an emergency
action plan (EAP) being discussed but did not recall ever seeing one at the beach. England claimed
a document called “Emergency Procedures” was either given to the beach managers and lifeguards
or posted in the office or lifeguard room. He had not found any other lists of emergency
procedures. He expected the lifeguards and beach managers would have known of these
emergency procedures. The “Emergency Procedures” document indicated lifeguards should blow
their whistle one time to warn a patron, two times to get the attention of the other guards, and three
times for a true emergency such as a lost child or drowning patron. England testified a line search,
where the guards linked arms and walked through the water, would be the best type of search to
use at the beach because of the opaque water. England believed beach patrons should have been
able to rely on the lifeguards performing their jobs. However, he also noted signs were posted in
the locker rooms and the water instructing novice swimmers to stay in shallow water. In addition,
a buoy line separated the shallow water from the deeper water.
¶8 Three to four weeks before Eric’s death, after a patron complained to the mayor’s
office about what the patron believed to be an inappropriate number of lifeguards at the beach,
England prepared a handwritten memo, which he said reflected the policy which had been in place
during his tenure as the utility property manager. The memo indicated a lifeguard needed to be in
the area of the diving board when used, the slide when used, and the middle area of the water if
someone was in the water there. He said the lifeguards and beach managers should have been
familiar with the information in the memo. Plaintiff’s counsel and England then had the following
exchange:
“Q. Now I’m going out on a limb here in saying that you underlined the
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word ‘must’ and the manner in which you delivered this memo, half dozen or more
[copies] to the beach personally, you were a little upset about the complaint?
A. I don’t know if I was upset. I was just wanting to reiterate where we
want guards and why.
Q. Okay. And do you believe that you would have delivered this memo in
person to the beach house ***?
A. Yes.”
It is not clear who he gave the copies of the memo to at the beach house.
¶9 Brittany Young-Hunter testified she was a certified lifeguard for the City in 2007
but had no experience in an open-water facility prior to working at the beach. She did not recall
being given any manuals explaining procedures and policies at the beach. She did take a fitness
and agility test at the beach. To pass the test, a lifeguard had to jump from the balcony of the
beach house onto a pile of sand, run to the water, swim to the seawall, and then get back to the
sand pile in three minutes or less. Young-Hunter testified a missing swimmer needed to be found
within three minutes to avoid brain damage.
¶ 10 Young-Hunter did not remember doing any in-service training at the beach before
she was allowed to work while the beach was open to the public. She testified she was a head
lifeguard in 2007, had more responsibilities than a normal lifeguard, considered England to be her
supervisor, and was never told she was to train the other lifeguards. In addition, she testified she
was never given an EAP, never practiced a missing person EAP, and never did any “dummy drop”
drills while working at the beach. A “dummy drop” drill requires lifeguards to locate a dummy
the size of a child in the water, bring it to the surface, and then perform cardiopulmonary
resuscitation (CPR). EAPs were discussed at both her StarGuard and Red Cross certification
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training. According to Young-Hunter, EAPs are necessary because they help lifeguards respond
faster in emergency situations. Based on her training with StarGuard and Red Cross, the EAPs
should be written down so everyone knows what to do. Young-Hunter also testified EAPs need
to be site specific.
¶ 11 When Eric drowned, two lifeguard chairs were in use. They were the “south mid
chair,” which was between the shoreline and the seawall on the south side of the swimming area,
and the “slide chair,” which was by the waterslide. Chase Gobble replaced Young-Hunter in the
“slide chair” before the incident. Denis Caveny was in the “south mid chair.” When Gobble
announced for everyone to clear the water on his megaphone, Young-Hunter was not in the water.
She ran toward Gobble to assess the situation. Gobble looked panicked. Someone said a patron
was underwater or missing. Young-Hunter went into the water and noticed Caveny was no longer
in the “south mid chair.” She asked Gobble what happened but was given no information other
than that they had a missing swimmer. While moving toward the deep end of the swimming area,
she heard a woman, who she believed was a family member or friend of the missing person, say
the missing person was by the seawall. Young-Hunter did not know whether the missing person
could swim. She also did not know the swimmer’s last known location, which was important
information based on her training. Neither Denis Caveny nor any other lifeguard told her anything
about Eric except he was missing. When she and Gobble got out to the area identified by the
woman, she started diving looking for the missing person. After searching, she started blowing
her whistle. When the other lifeguards who were working but were not on active duty at that
moment started to respond, she noticed some of the guards had to go back to get rescue buoys.
After the guards got in the water, the search for the missing swimmer was chaotic and unorganized.
She tried to organize a line search, but everyone was so frantic she did not think her suggestion
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registered with the other lifeguards.
¶ 12 According to Young-Hunter, during a line search, the lifeguards line up, hold
hands, and walk together while dredging their feet back and forth until they cannot touch the
bottom of the lake. Then, while staying in line, the lifeguards would start diving and feeling for
the missing bather with their hands and feet. Because everyone is in a line, the lifeguards can
make sure they cover the entire area. She said this is the best manner of finding a person in opaque
water when you don’t know where the person is. The line search starts in the area where the person
was last seen. Eventually, a patron at the beach forced everyone to come together in the shallow
end and start a line search. She testified 10 minutes passed between the time she heard Gobble
clearing the water and when she blew her whistle. Once the line search started, they found Eric in
less than a minute 10 to 15 feet from the “mid south chair,” where Caveny had been sitting when
the missing person was reported to him. Caveny had provided Young-Hunter with no information
he learned from Eric’s friend, who first reported Eric was underwater and could not swim. Cassie
Gurnsey-Hopkins, who was also a head lifeguard, found Eric. Other lifeguards pulled Eric to the
surface and carried him out of the water. She believed a nurse and possibly someone from the
military took charge of Eric’s treatment on the beach.
¶ 13 Also, according to Young-Hunter, when a person is reported missing to a lifeguard,
the lifeguard should immediately blow his or her whistle, the water should then be cleared, and an
EAP should be activated. She believed Eric would have been found in under three minutes if
Caveny had immediately blown his whistle and a line search was formed when the other lifeguards
responded.
¶ 14 Young-Hunter testified the lifesaving process was not set in stone. If she was in
the lifeguard chair and was told someone just went underwater at a precise location, she might dive
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in and save the person without clearing the water first. However, she indicated she would blow
her whistle first. On the day at issue, she did not make a conscious decision not to blow her whistle
before she started looking for Eric. The situation was confused from the beginning because no
one took charge. With regard to information she was given by the woman on the beach,
Young-Hunter assumed the woman knew Eric’s last known location. However, she conceded the
woman might have seen Caveny’s head bobbing out by the seawall.
¶ 15 Kelly Pinkley testified she was a certified lifeguard at the beach but had no prior
experience in an open-water facility. Pinkley also testified England had managerial authority over
her. She did not recall seeing any memo he drafted for the beach staff. She indicated scanning
was important for a lifeguard to help keep track of people in the water. If anyone was using the
diving platform, a lifeguard needed to watch the person dive, surface, get back to, and climb on
the platform. She testified lifeguards are required to follow EAPs to do their job properly. She
believed an EAP was on the bulletin board at the beach house but did not remember what it said.
According to Pinkley, if a lifeguard is told a person is missing, the lifeguard should first blow his
or her whistle, then clear everyone out of the water, and then start looking for the missing person
in his or her last known location. When other lifeguards arrived, they should do a line search for
the person.
¶ 16 Pinkley was in the upstairs break room of the beach house when she heard a long
whistle. She saw the water being cleared, jumped off the balcony, and started the EAP. She
quickly put her guard suit top on and saw Casey Gurnsey putting her guard suit back on. Pinkley
grabbed rescue tubes and headed to the water. The lifeguards she saw were in the deep water and
scattered. She went to where the other lifeguards were and started searching underwater. She only
knew they were looking for a boy. Pinkley thought she did five to seven surface dives searching
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the bottom of the lake, with each search lasting between 30 seconds and a minute. The other
lifeguards were doing the same. Eventually, the lifeguards formed a line search by the “south mid
chair” and found Eric soon after starting just north of the chair.
¶ 17 Pinkley testified Caveny’s and Gobble’s placement at the beach was normal unless
the beach was more crowded or if children at a summer camp were present. The lifeguard in the
“south mid chair” was responsible for watching both the divers and people swimming in the deep
water. Pinkley did not speak to Caveny about what happened.
¶ 18 Cassie Kovalski was a certified lifeguard and also had her open-water certification.
She did not recall any other tests or training provided to her at the beach other than the fitness and
agility test and treading water while holding a brick over her head. She also did not remember
seeing England’s memo prior to Eric drowning. If the diving board chair was not being used, the
lifeguard in the “south mid chair” would watch the divers. According to Kovalski, a lifeguard
should go into the water to assist someone he or she could see was struggling. However, when a
lifeguard is informed someone is missing, the lifeguard should first blow his or her whistle, then
clear the water, and then do a line search as soon as the other lifeguards arrived after responding
to the whistle. She believed the lifeguards only blew their whistles if there was an emergency.
She also indicated a staff member would look around the facilities in case the person was in the
locker room or concession stand and not in the water.
¶ 19 When Eric was reported missing in the water, she saw people leaving the water.
She went into the water to help the other guards who said they were looking for a non-swimmer.
She did not remember hearing a whistle and started blowing hers because only four or five
lifeguards were in the water. The other lifeguards in the water continued searching. She did four
to six dives trying to find Eric. She was not told the missing swimmer’s last known location and
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estimated 10 minutes passed between her entering the water and the line search. After the line
search started, Eric was found within five minutes far from where they were performing rescue
dives. During her time working at the beach, she received no training on how to do a line search.
She did not believe she was ever told where Eric was initially reported missing.
¶ 20 Denis Caveny testified he had lifeguard, CPR, and first aid certifications. He
interviewed with England and believed England’s authority exceeded everyone else’s authority at
the beach. If England told him to do something, he did it. The beach was Caveny’s first
open-water lifeguard job. He did not remember receiving any training at the beach or seeing or
hearing about England’s memo. As a certified lifeguard, he knew murky water was a known
hazard and posed more of a safety risk than clear water. Caveny also acknowledged he knew non-
swimmers went into areas marked as deep water.
¶ 21 Caveny testified EAPs are necessary for a lifeguard to do his or her job effectively.
While he believed a lifeguard has some discretion to not follow an EAP, the EAP is not to be
disregarded. He did not remember much about the EAP in place at the beach for a distressed
patron in the water. After being shown his earlier deposition testimony, Caveny agreed the EAP
for a drowning victim first required blowing your whistle and then clearing the water. The
lifeguard would then try to locate the drowning victim by himself in the victim’s last known
location. If the lifeguard could not find the person, then a line search should be started right away.
If no one knew where the missing person was, the lifeguards would clear the water and
immediately start a line search. The EAP was initiated with three short whistle blasts to alert the
other lifeguards of an emergency. After hearing the whistle, lifeguards would go to the water,
clear the water if necessary, and then talk to other guards to determine how to help.
¶ 22 Just before Eric went missing, he and his group of friends were in front and a little
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to the right of Caveny’s chair. Before he was told Eric was missing, Caveny’s attention was on a
child using the diving board. Caveny said Eric’s companion did not yell that Eric was missing.
Instead, they got his attention and said their friend was missing and could not swim. Plaintiff’s
counsel pointed out Caveny told the police the person in Eric’s group yelled this information to
him. The person indicated Eric was last seen near where the person was standing, which was a
little northwest of Caveny’s chair. Caveny went to Eric’s last known location within seconds and
searched for him by doing a grid search underwater for 10 to 15 seconds. He could not see anything
in the water but searched twice by himself. After the second search, Caveny yelled at Gobble to
clear the water. Cavaney said he did not blow his whistle because he thought it would be more
effective for Gobble to do it and for Caveny to keep searching. When Caveny told Gobble to clear
the water, this was the first time another lifeguard was notified of the emergency. Caveny testified
Eric was found about six to eight feet from the lifeguard chair where Caveny had been sitting,
which was very close to where Eric’s friends told Caveny they last saw him.
¶ 23 According to Caveny, after his second search underwater, Eric’s friends said they
saw bubbles out by the seawall and gestured toward the seawall. Caveny had no additional
information. He then swam out by the seawall and started searching for Eric. Gobble soon joined
Caveny. Caveny did not tell Gobble of Eric’s last known location or that Eric could not swim. He
did not remember who else came out that far to search or whether anyone in the water blew their
whistle more than 10 times. Eventually, a line search was done, and Eric’s body was quickly
found. Caveny indicated a line search was the only effective way to find someone in water where
you could not see. According to Caveny, when he was searching by the seawall, Eric’s friends did
not say he was looking in the wrong spot.
¶ 24 Darcy Woodrum and her husband Travis Woodrum both testified they were at the
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beach on the day in question but were outside the fenced area when they noticed a commotion.
They ran back to the water when they realized something serious was happening. Darcy called
911 because she believed someone was missing. She heard a boy arguing with a lifeguard,
screaming someone had gone down in the water. The lifeguard told the boy to check the beach
house for the missing person. Darcy told her husband to help the lifeguards because they were not
doing much of a search. The boys who had been with Eric were saying Eric was last seen in the
area where he was eventually found. Darcy said the lifeguards looked panicked, confused, and
unorganized. She acknowledged neither she nor her husband had ever been a certified lifeguard
or knew what rules and procedures lifeguards are expected to follow.
¶ 25 Travis Woodrum testified no one knew what was going on at the beach, and he had
not heard a whistle. After about five minutes, he noticed lifeguards running back and forth from
the water to the beach house to get floatation devices and other equipment. He then heard a
lifeguard tell another lifeguard to blow his or her whistle. After the whistle was blown, more
lifeguards came to the water. Like his wife, Travis testified a group of boys who had been with
Eric were telling a lifeguard Eric was at the location where he was finally found. Because the
lifeguards did not seem to be doing anything, Travis and another man went into the water.
Eventually some civilians and lifeguards started doing a line search and found Eric. Travis testified
he pulled Eric out of the water and carried him to shore.
¶ 26 Gerry Dworkin testified as an expert in lifeguarding and aquatic safety. After
reviewing deposition transcripts of all the lifeguards present, the City’s discovery responses,
photographs, and police reports, and considering materials he had on lifeguarding and aquatic
safety available around 2007, he testified it was his opinion to a reasonable degree of certainty
with regard to lifeguarding and aquatic safety that the City failed to establish its own operational
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protocols and surveillance protocols and did nothing to train its lifeguards through pre-service and
in-service training necessary to ensure the lifeguards could operate as a team both in preventing
and managing accidents. He testified the evidence was clear the lifeguards did not respond
appropriately to the incident. Dworkin testified the City through its agents at the beach showed a
conscious disregard for the supervision and management of its lifeguards, which was a proximate
cause of Eric’s drowning death because the lifeguards failed to (1) recognize Eric’s distress
because of a lack of established surveillance protocols, (2) appropriately respond to a report of a
missing bather, and (3) appropriately search for the missing bather.
¶ 27 Dworkin testified drowning was a known hazard and danger in the lifeguarding
industry in 2007. According to Dworkin, certified lifeguards are not qualified to work at every
aquatic facility. He noted organizations that provide certification advocate for certified lifeguards
to receive site-specific pre-service training and regular in-service training. Dworkin also testified
every aquatic facility should have a comprehensive risk management program, which includes
conducting a comprehensive threat assessment to develop operational protocols and procedures to
prevent, recognize, and manage incidents and a plan to train its employees for potential incidents.
Dworkin testified the City, the managers, and the lifeguard supervisors did nothing to provide
site-specific training for the lifeguards and did not know anything about the protocols the
lifeguards were following. According to Dworkin, lifeguards need to be supervised, and it is
critical for the facility manager to develop standard operating procedures, including EAPs, to
ensure a consistent response to emergencies. Dworkin indicated lifeguards cannot simply be hired
at the beginning of the summer and told to do their jobs without any site-specific training.
¶ 28 While the City had somewhat of a plan for locating a missing person, Dworkin said
the City’s plan failed to distinguish between a missing person outside the water and a missing
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bather. As a result, Dworkin thought the City’s plan was not good. He also indicated none of the
lifeguards testified they had practiced an in-service missing bather EAP. While the lifeguards
knew what should have been done, Dworkin testified they failed to follow the appropriate steps
during the emergency because no protocols were in place and they were not properly drilled to
prepare for the situation.
¶ 29 Dworkin testified any missing bather report in an open-water facility is a true
emergency. If a lifeguard gets such a report from a credible witness, it is critical to put the witness
in the position where they last saw the victim and the search needs to be done in that location in
an organized and coordinated manner. Dworkin also testified it has been well known for decades
that non-swimmers will go into deep water. Dworkin believed Eric’s drowning was preventable.
¶ 30 Michael Jones, Eric’s brother, testified he, Eric, and their cousins went to the beach
to have a good time. Eric wanted to learn to swim. It was Michael and Eric’s first time at the
beach. They went into water about chest deep. At some point, Michael slipped, and he grabbed
Eric, who was by him. Their cousin then grabbed Michael and swam him to shallower water.
When this happened, Michael lost contact with Eric. Michael looked for Eric but could not see
him. He called to a lifeguard and told him his brother was under the water and could not swim.
The lifeguard got in the water, and Michael told him where he had lost contact with Eric, which
was close to where Michael was standing. The lifeguard started looking for Eric, but not in the
area Michael told him to look. Michael was hollering at the lifeguard and pointing to where Eric
had been. However, the lifeguard did not hear him, and Michael was told he had to get out of the
water. A lifeguard then asked Michael to check the locker room to see if Eric was in there, which
Michael did. When he came back from the locker room, the lifeguards were not in the area where
he told them Eric was last seen.
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¶ 31 After plaintiff rested, the City moved for a directed verdict based on our supreme
court’s decision in Barr v. Cunningham, 2017 IL 120751, ¶ 18, 89 N.E.3d 315, arguing plaintiff
did not present sufficient evidence to establish the City’s actions were willful and wanton. The
trial court denied the City’s motion.
¶ 32 The City then presented its witnesses. Cassandra Gurnsey-Hopkins testified she
was one of the head lifeguards during the summer of 2007. The City only hired certified lifeguards
to work as lifeguards at the beach. In 2004, when she started working at the beach, in-service
training was provided once a summer, sometimes more. She believed the EAP in 2007 for a
missing swimmer whose location was identified in the water by his companions required
immediate action to try and find the missing swimmer by checking the indicated area first. She
noted lifeguards are reliant on information provided by the missing person’s companions.
¶ 33 Gurnsey-Hopkins was in the break room when she became aware of the situation.
She believed Gobble was blowing his whistle. She jumped from the balcony, grabbed a lifeguard
tube, and ran to the water as the patrons were leaving it. She was told what was happening by
other lifeguards, and she spoke to some people who said they were Eric’s friends. She testified
Eric’s friends said he went underwater and was last seen by the seawall. She then started searching
by the seawall with the other lifeguards in a coordinated dive search. When they did not find
anything, she and Young-Hunter decided to start a line search at the shoreline. She said the line
search was organized by the lifeguards, not a patron. Eventually, they got to a place in the water
where they could not touch so they started diving. Her foot went into Eric’s back. She came back
up, told Gobble she found Eric, and Gobble grabbed Eric and took him to the shore.
¶ 34 On cross-examination, Gurnsey-Hopkins testified a missing person EAP was never
practiced. She indicated she would have first blown her whistle to notify every other lifeguard of
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an emergency if she was in Caveny’s situation. She stated the act of blowing the whistle started
the EAP. She was conscious of this and believed the other lifeguards were as well. Another guard
would use a megaphone to clear the water of people and point to where the initial whistle was
blown so the responding lifeguards would know where the emergency was. She testified the next
step would be to start a bottom search where the victim was last known to be.
¶ 35 Gurnsey-Hopkins acknowledged non-swimmers were always trying to go into
deeper water instead of staying in the shallow area. She also stated all the lifeguards should have
had a clear understanding of the action plans. On cross-examination, she acknowledged she did
not talk to anyone who was with the victim before she went into the water by the seawall and
started searching. The only person she spoke to before starting to search the water was another
lifeguard. She acknowledged she said the search was disorganized during a deposition in 2009.
¶ 36 Tyler Lobemaster testified he started working at the beach in June 1999 and was a
beach house manager in 2007. He had never been a lifeguard and was not at the beach on the day
in question. He testified they had EAPs at the beach, which were kept either in the manager’s
office or in the lifeguard station. The EAPs were discussed among the lifeguards and with
management at the beginning of the season and also occasionally during the three-month season.
He was not involved in any drills or lifeguard safety exercises. The head lifeguard would set up
those practices, and he did not tell the lifeguards what drills to do. He said the training included
mock emergency drills and also the fitness and agility test previously discussed. The City provided
the lifeguards with whistles, floating devices, body boards, backboards, CPR masks, and other
equipment. He knew of no situation where a lifeguard was indifferent to the safety of a patron or
disregarded their obligations to the patrons.
¶ 37 Lobemaster said Douglas England was his supervisor. England would get
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equipment for the beach when it was needed and have repairs done at the beach. In his opinion,
every lifeguard was conscious the EAPs were essential to save the lives of distressed swimmers.
He believed every lifeguard should have been conscious and knowledgeable of the emergency
actions plans and knew the plans had to be followed to the letter because lives depended on it.
¶ 38 Kate Blankenship, formerly Kate Figueira, testified she was a beach manager in
2007. She started working at the beach as a certified lifeguard and worked as a lifeguard for five
or six summers. The last summer she worked at the beach in 2007, she was promoted to manager.
She was not a certified lifeguard at the time of the incident in this case. The beach required all its
lifeguards to be certified. She testified they did in-service training, which might include fishing
something heavy off the bottom of the diving well or engaging in role-playing scenarios. She said
they did this at least once or twice per year.
¶ 39 When asked what a lifeguard is supposed to do if a patron says his friend went
underwater and provides the last known location for the missing person, Blankenship responded
the lifeguard is supposed to use their whistle to notify the other lifeguards of the potential
emergency. This keeps the lifeguard from trying to deal with the situation by himself or herself.
When asked if a line sweep is feasible in deeper water, Blankenship said it can be done. When
lifeguards are performing the line sweep and running out of ground to walk on, they stay in a line
and submerge themselves, feel around, come back up, and then move forward in a line as best as
possible. She testified she believed it was acceptable for the lifeguard to immediately search the
area where the person was last seen before blowing his whistle.
¶ 40 On the day in question, she heard a whistle being blown. She was on the second
floor of the beach house, jumped over the rail onto the sand pile, and then went down to see what
was happening. She believed she was told someone was missing. Eric had been with family
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members, and they were not sure if he was in the water or elsewhere. She believed the people
originally said Eric was out by the seawall. She checked around places where Eric might be.
When he was not found, she went back to the water and joined in the line search. She said no
patron had taken over the situation and was telling the lifeguards what to do. After the line search
started, she believed Eric was found within three to four minutes. She testified Caveny never told
her Eric was found where he was reported missing.
¶ 41 Carl Brunsman testified he worked as a lifeguard at the beach. In a situation where
a swimmer was missing, the lifeguard was supposed to blow his whistle to alert other lifeguards
of the situation. If a lifeguard is told a person went under in a specific location, the lifeguard
should immediately start looking in that area instead of waiting for a line search. He did not
remember if he heard a whistle on the day in question. When he got to the beach, it was cleared.
He heard the lifeguards say they thought the victim might have been in a different spot. The
lifeguards then regrouped and started the line search. After Eric was found, Brunsman swam him
back to shore. A random person at the beach tried to come over and start doing CPR on Eric while
he was still in the water. Gobble hollered at the person that you cannot do CPR while the person
is still in the water. When asked whether he made any conscious decision to disregard rules or
procedures, Brunsman said he did not believe so. He explained instinct and training kick in during
a situation like that. Brunsman said that is why you train.
¶ 42 Brunsman testified the beach was the first open-water facility he worked at.
Besides the fitness and agility test, Brunsman testified he did not receive any in-service training at
the beach. He was not told the missing person was a non-swimmer. He was also not told the last
known point the missing person was seen was directly in front of the “south mid chair.”
¶ 43 Chase Gobble, a head lifeguard at the beach at the time of Eric’s death, testified he
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was a certified lifeguard but did not have an open-water certification. According to Gobble, some
in-service training was done at the beach, but only when the managers said it needed to be done.
In the training sessions they did have, they never practiced line searches. Gobble did not receive
any kind of manual from the beach and had no memory of seeing one. He agreed the water at the
lake was much more dangerous for swimmers than water at a pool because of the water’s
opaqueness. Gobble indicated England was in a position of authority over the beach managers
and lifeguards. If England asked Gobble to do something, Gobble would have done it. Gobble
never received the memo England said he took to the beach weeks before Eric drowned.
¶ 44 According to Gobble, when Eric went underwater, Gobble was in a lifeguard chair
in the shallow part of the lake and Caveny was in a lifeguard chair in deeper water. Gobble
indicated this was a common set-up for the guards if the beach was not busy. He first became
aware something was wrong when Caveny told him to clear the water. Gobble used his megaphone
to do so. He testified someone blew his whistle, but he was unsure who did so. Gobble went into
the water to help Caveny. Gobble said the kids who were talking to Caveny said Eric was out by
the wall. Gobble and Caveny then went out by the seawall and looked for Eric. They were out
searching by the wall for a few minutes. When they did not find him, they started a line sweep
and found him within a minute or two.
¶ 45 According to Gobble, when a lifeguard is told a person is missing, the lifeguard is
supposed to blow his whistle three times. This is what Caveny should have done. Because the
lifeguard who received the report would have the most information regarding the last location of
the missing person, another lifeguard would clear the water of patrons. Gobble did not remember
if he stayed in his chair until everyone had left the water. Gobble said the next step in the EAP
was to start a line search. According to Gobble, Caveny never told him the people with Eric said
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he could not swim and was last seen within feet of the lifeguard chair Caveny had been using. Had
Caveny told him this, Gobble would not have gone to the seawall to look for Eric. Instead, Gobble
would have started a line search right away.
¶ 46 David Stewart Smith testified as an expert witness in the field of aquatic safety for
the City. He indicated he reviewed the deposition or trial testimony of two of Eric’s cousins, Eric’s
brother, 10 lifeguards who were present and working on the day of the incident, Eric’s mother,
Lobemaster, England, and a few other people. He also reviewed police reports and lifeguarding
manuals from the Red Cross, the YMCA, and the United States Lifesaving Association. Smith
testified neither the individuals managing the beach nor the lifeguards showed an utter disregard
or conscious indifference for the safety of its patrons. Smith believed “utter indifference” meant
no one cared about saving Eric, which was not true. He believed plaintiff needed to introduce
some evidence the lifeguards did not care what happened to Eric to prevail.
¶ 47 Smith noted the City required certified lifeguards, provided proper equipment, and
followed Illinois law with regard to lifeguard staffing requirements. The City also posted warnings
for novice swimmers. As for in-service training, Smith noted five lifeguards testified they
remembered receiving some training at the beach. Smith testified Caveny’s initial search at the
location where a witness said he last saw Eric did not represent an utter disregard, utter
indifference, or complete disregard of Eric’s situation. Smith opined Eric’s conduct alone was the
proximate cause of his death.
¶ 48 Smith acknowledged he had previously written that rescuers must be so practiced
in certain aspects of protecting themselves, their clients, or their prospective victims to allow them
to have an appropriate instinctive response. Smith agreed this was best accomplished by the
rescuers participating in specific drills in the water on an individual and group basis.
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¶ 49 We note all of the lifeguards who were asked indicated they took their job seriously,
would have done everything in his or her power to rescue a drowning person, and did not
consciously disregard his or her duties for the safety of the beach patrons.
¶ 50 At the close of all the evidence, the City made an oral motion for a directed verdict,
referencing its earlier motion for a directed verdict and adding an argument the evidence
established the City’s conduct fell within the City’s discretionary immunity per statute. The trial
court denied the City’s motion.
¶ 51 The jury returned a verdict in favor of plaintiff and found the total amount of
damages to be $1,500,000 ($750,000 for past and future grief and sorrow and $750,000 for post
and future loss of society). The jury also found the percentage of negligence attributable solely to
Eric Jones was 50%. As a result, plaintiff was awarded $750,000 in recoverable damages.
¶ 52 On June 10, 2021, the City filed a posttrial motion for judgment notwithstanding
the verdict. On January 5, 2022, the trial court denied the City’s motion, stating:
“The present case involves a known dangerous activity and there was sufficient
evidence to support the jury’s verdict finding willful and wanton conduct by the
[the City] and/or [its] agents. The Court further finds 745 ILCS 10/2-201
Discretionary Immunity does not apply as section 745 ILCS 10/3-108 is
controlling.”
This appeal followed.
¶ 53 II. ANALYSIS
¶ 54 On appeal, the City argues the trial court erred by not granting its motion for
judgment notwithstanding the verdict because the evidence presented did not establish the actions
of the City and its agents rose to the level of willful and wanton conduct. Therefore, the City
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argues it was immune from liability pursuant to section 3-108 of the Act (745 ILCS 10/3-108
(West 2006)). The City also claims it is entitled to discretionary immunity pursuant to sections
2-201 and 2-109 of the Act (745 ILCS 10/2-201, 2-109 (West 2006)) for decisions its employees
made while operating the beach.
¶ 55 In Harris v. Thompson, 2012 IL 112525, ¶ 15, 976 N.E.2d 999, our supreme court
provided the following guidance with regard to reviewing the denial of a motion for judgment
notwithstanding the verdict, which is often referred to as a judgment n.o.v.:
“ ‘[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases
in which all of the evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors movant that no contrary verdict based on the
evidence could ever stand.’ Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510, 229 N.E.2d 504 (1967). Where the uncontradicted evidence, viewed in the
light most favorable to the plaintiff, establishes a complete defense, a court is
justified in granting the defendant's motion for a judgment n.o.v. [Citations.] An
adverse ruling on a motion for a directed verdict or a judgment n.o.v. is reviewed
de novo. [Citation.] In other words, the reviewing court applies the same Pedrick
standard as did the circuit court.”
The question here is whether the evidence in this case establishes the City is entitled to immunity
under the Act.
¶ 56 A. Willful and Wanton Conduct
¶ 57 The City first argues the evidence in this case clearly establishes neither it nor its
employees engaged in willful and wanton conduct. As a result, the City argues it is entitled to
immunity pursuant to section 3-108(a) of the Act (745 ILCS 10/3-108(a) (West 2006)), which
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states, “[e]xcept as otherwise provided in this Act, neither a local public entity nor a public
employee who undertakes to supervise an activity on or the use of any public property is liable for
an injury unless the local public entity or public employee is guilty of willful and wanton conduct
in its supervision proximately causing such injury.”
¶ 58 Section 1-210 of the Act (745 ILCS 10/1-210 (West 2006)) defines willful and
wanton conduct as “a course of action which shows an actual or deliberate intention to cause harm
or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of
others or their property.” In Harris, 2012 IL 112525, ¶ 41, 976 N.E.2d 999, our supreme court
provided the following guidance:
“The term ‘willful and wanton’ includes a range of mental states, from actual or
deliberate intent to cause harm, to conscious disregard for the safety of others or
their property, to utter indifference for the safety or property of others. [Murray,
224 Ill. 2d 213, 235, 864 N.E.2d at 189.] Further, this definition of willful and
wanton conduct is entirely consistent with this court’s long-standing case law.
[Citations.] Whether conduct is willful and wanton depends on the circumstances
of each case.”
Ordinarily, the determination whether conduct is willful and wanton is a question of fact for the
jury. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 245, 864 N.E.2d 176, 194 (2007).
However, if the evidence is so overwhelmingly in favor of one party that a different result cannot
stand, a court may decide as a matter of law whether the conduct is willful and wanton. Bielema
ex rel. Bielema v. River Bend Community School District No. 2, 2013 IL App (3d) 120808, ¶ 12,
990 N.E.2d 1287.
¶ 59 According to the City’s brief, the supreme court in Barr clearly held that when a
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unit of local government takes steps to prevent injuries, the fact the entity did not take additional
steps that would have prevented an injury does not establish the entity exhibited a conscious
disregard for the safety of others. The City then argues the supreme court’s reasoning in Barr is
representative of the uniform law followed in Illinois. As examples of this uniformity, the City
cites and provides a brief summary of the following cases: Bielema, 2013 IL App (3d) 120808;
Geimer v. Chicago Park District, 272 Ill. App. 3d 629, 650 N.E.2d 585 (1995); Tagliere v. Western
Springs Park District, 408 Ill. App. 3d 235, 944 N.E.2d 884 (2011); Stiff by Stiff v. Eastern Illinois
Area of Special Education, 279 Ill. App. 3d 1076, 666 N.E.2d 343 (1996); and Biancorosso v. Troy
Community Consolidated School District No. 30C, 2019 IL App (3d) 180613, 151 N.E.3d 662.
¶ 60 The City seems to suggest these cases stand for the proposition an entity covered
by the Act that takes some steps to protect an individual or individuals cannot be found to have
engaged in willful and wanton conduct. We disagree. See In re Estate of Stewart, 2016 IL App
(2d) 151117, ¶ 105, 60 N.E.3d 896 (“We disagree with the District’s implication that taking any
action in response to a known danger is sufficient to insulate a defendant from allegations of willful
and wanton conduct.”). While the fact more safety precautions could have been taken by a
defendant does not establish the defendant’s conduct was willful and wanton, this does not mean
the conduct of a defendant who took some safety steps cannot be willful and wanton. “Whether
conduct is willful and wanton depends on the circumstances of each case.” Harris, 2012 IL
112525, ¶ 41, 976 N.E.2d at 1011.
¶ 61 The jury in this case had sufficient evidence to find the City and its employees
showed a conscious disregard for the safety of its patrons at the beach, including Eric, by failing
(1) to have a clearly established EAP dictating how the lifeguards should handle a situation where
a swimmer was missing in the water and (2) to require the lifeguards to practice responding to a
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situation where a person is reported missing in the opaque water at the beach.
¶ 62 The evidence showed this was Denis Caveny’s first lifeguard job at an open-water
facility. He received no in-service training at the beach. The evidence showed he was the first
lifeguard notified Eric was missing. Instead of blowing his whistle to alert the other lifeguards of
the potential emergency as he should have done, he entered the water and started searching for
Eric. Only after doing two searches by himself did he alert another lifeguard, Chase Gobble, to
clear the water. While Gobble used his megaphone to clear the water, some evidence showed he
also failed to blow his whistle to alert the other lifeguards. Caveny then failed to tell Gobble or
any other lifeguard the missing swimmer could not swim and was last seen near the lifeguard tower
where Caveny had been sitting. According to Gobble, if he knew this information, he would have
started a line search right away. Instead, Gobble followed Caveny out by the seawall and searched
for Eric there. When the whistle was finally blown, the other lifeguards responded to the area
where Caveny and Gobble were searching. The lifeguards wasted valuable time looking for Eric
in the wrong location. Witnesses testified the search by the seawall was disorganized, with no one
in charge.
¶ 63 Plaintiff’s expert, Gerry Dworkin, testified the City and its agents did nothing to
train its lifeguards through pre-service or in-service training, which was necessary to ensure the
lifeguards could operate as a team both in preventing and managing accidents. Dworkin testified
the lifeguards failed to respond appropriately when this emergency occurred. The evidence was
clear that drowning is a known danger at an aquatic facility. In this case, the evidence showed the
lake water was even more dangerous, especially when a bather is missing, because the lifeguards
could not see in it. Based on the totality of the circumstances in this case, the fact the City and its
agents failed to have a clear EAP in place for what the lifeguards should do if a bather was missing
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in the water combined with the fact the City and its agents did not require the lifeguards to practice
and drill what they should do in this type of situation in the opaque beach water was strong
evidence of the City’s conscious disregard of the safety of its patrons, including Eric.
¶ 64 Dworkin testified the lifeguards knew what should have been done but failed to
take the proper actions when the emergency actually occurred because the City and its agents had
failed to train them for the situation. Even the City’s expert agreed rescuers should practice
responding to emergencies so they would have an appropriate instinctive response to an emergency
situation. Plaintiff also introduced evidence neither England nor the beach managers told the
lifeguards they were in charge of training themselves.
¶ 65 Based on the record in this case, the trier of fact had sufficient evidence to find the
failure of the City and its agents to have a clear EAP for this situation and to practice what needed
to be done if a swimmer went missing in the beach’s opaque water, a known dangerous situation,
constituted willful and wanton conduct that led to Eric’s death. Because the record contained
sufficient evidence for a trier of fact to determine the City and its agents engaged in willful and
wanton conduct, the City was not entitled to immunity pursuant to section 3-108 of the Act (745
ILCS 10/3-108 (West 2006)), and the trial court did not err in denying the City’s motion for
judgment notwithstanding the verdict.
¶ 66 B. Statutory Discretionary Immunity
¶ 67 The City also claims the trial court erred in not granting its motion for judgment
notwithstanding the verdict because it is entitled to statutory discretionary immunity as a matter
of law pursuant to sections 2-201 and 2-109 of the Act (745 ILCS 10/2-201, 2-109 (West 2006)).
Section 2-109 states “[a] local public entity is not liable for an injury resulting from an act or
omission of its employee where the employee is not liable.” 745 ILCS 10/2-109 (West 2006).
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Section 2-201 states, “[e]xcept as otherwise provided by Statute, a public employee serving in a
position involving the determination of policy or the exercise of discretion is not liable for an
injury resulting from his act or omission in determining policy when acting in the exercise of such
discretion even though abused.” 745 ILCS 10/2-201 (West 2006).
¶ 68 In the trial court, plaintiff argued section 2-201 does not apply because section 3-
108 covers the specific situation in this case. The trial court agreed. Although the trial court did
not specify the authority on which it relied, plaintiff’s response to the City’s motion for judgment
notwithstanding the verdict cited Murray v. Chicago Youth Center, 224 Ill. 2d 213, 864 N.E.2d
176 (2007). In Murray, our supreme court stated:
“Even when an immunity provision does not contain conditional language
as found in sections 2-201 and 3-108(a), this court has not hesitated to consider
whether the immunity afforded by one provision might be negated or otherwise
limited by some other applicable provision. [Citations.] It is a well-settled rule of
statutory construction that [w]here there are two statutory provisions, one of which
is general and designed to apply to cases generally, and the other is particular and
relates to only one subject, the particular provision must prevail.” (Internal
quotation marks omitted.) Murray, 224 Ill. 2d at 233, 864 N.E.2d at 188.
¶ 69 In its appellant’s brief, the City failed to address the trial court’s conclusion section
2-201 did not apply in this case because section 3-108 is controlling. In fact, appellant’s brief did
not even mention section 3-108 or Murray when discussing why the trial court erred in not
applying section 2-201. As a result, pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. May
25, 2018), we find the City forfeited any argument the trial court erred in holding section 3-108 of
the Act is controlling in this case. “A reviewing court is entitled to have the issues clearly defined
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with pertinent authority cited and is not simply a depository into which the appealing party may
dump the burden of argument and research.” People v. Hood, 210 Ill. App. 3d 743, 746, 569
N.E.2d 228, 230 (2001). We will address this issue no further.
¶ 70 III. CONCLUSION
¶ 71 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 72 Affirmed.
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