Barnett v. Ludwig and Company , 2011 IL App (2d) 101053 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Barnett v. Ludwig & Co., 2011 IL App (2d) 101053
Appellate Court CAROLYN BARNETT, Individually and as Special Administrator of the
Caption Estate of Darius Smith, Deceased, Plaintiff-Appellant, v. LUDWIG AND
COMPANY and LAKE TOWERS ASSOCIATES, II, LLP, Individually
and d/b/a Cinnamon Lake Towers, Defendants-Appellees.
District & No. Second District
Docket No. 2-10-1053
Filed November 4, 2011
Held The trial court properly entered summary judgment for defendants in a
(Note: This syllabus negligence action arising from the drowning of plaintiff’s 17-year-old
constitutes no part of decedent in a swimming pool at defendants’ apartment complex,
the opinion of the court notwithstanding plaintiff’s allegations that there was no lifeguard, that the
but has been prepared pool attendant did not attempt to stop “dangerous activities” or act to
by the Reporter of assist decedent and that defendants failed to comply with the Swimming
Decisions for the Facility Act, since defendants had no duty to decedent to provide a
convenience of the lifeguard, and even if a duty could be derived from the Act, that duty was
reader.)
fulfilled by the posting of the proper notice in lieu of providing a
lifeguard.
Decision Under Appeal from the Circuit Court of Lake County, No. 08-L-912; the Hon.
Review Margaret J. Mullen, Judge, presiding.
Judgment Affirmed.
Counsel on Scott B. Gibson, of Gibson & Associates, Ltd., of Waukegan, for
Appeal appellant.
Anthony J. Ritrovato and Mara H. Weinstein, both of Maisel &
Associates, of Naperville, for appellees.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hudson concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Carolyn Barnett, individually and as special administrator of the estate of Darius
Smith, appeals from the circuit court’s summary judgment in favor of defendants, Ludwig
and Company and Lake Towers Associates, on plaintiff’s claim for negligence for the
drowning death of Darius in a swimming pool at an apartment complex owned and managed
by defendants. Plaintiff also appeals from the denial of her own motion for summary
judgment. We affirm, holding that, as a matter of law, defendants breached no duty of care
to Darius.
¶2 BACKGROUND
¶3 On July 30, 2008, Darius drowned in an outdoor swimming pool that Cinnamon Lake
Towers apartment complex (CLT) provided for residents and their guests. Darius drowned
in the deepest part of the pool, which was nine feet deep. He was 17 years old at the time.
Darius did not reside at CLT in July 2008 but was a guest of his sister, Shanta Barnett.
Plaintiff brought a negligence suit against defendants. She alleged the following. On the day
in question, defendants’ employee, the “pool attendant,” was on duty at the pool. The pool
attendant was not a lifeguard, and defendants did not assign a lifeguard to the pool that day.
On “multiple occasions” prior to July 30, 2008, the pool attendant permitted minors under
the age of 16 to swim in the pool even though the attendant knew that no lifeguard was
present and that no parent or guardian was accompanying the minors. On July 30, 2008,
Darius and “other teenagers” were swimming, jumping, and diving into the pool and were
playing “tag-like games” in the pool and on the deck. The attendant did not admonish Darius
and the others to stop playing in this “dangerous” manner. At one point during this activity,
Darius struck his head on the concrete pool deck, became disoriented, and was unable to
swim. For several minutes he “call[ed] for help in the deep end of the swimming pool ***,
thrashing about, and in distress.” The pool attendant was asked to help Darius, but before the
attendant took action Darius was brought out of the pool by others. Darius was later
pronounced dead from drowning.
¶4 The complaint alleged numerous grounds of negligence. First, plaintiff alleged that
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defendants were negligent because their employee, the pool attendant, did not attempt to stop
the “dangerous activities” in which the swimmers were engaged and did not act to assist
Darius when alerted that he was in distress. Second, plaintiff alleged that defendants failed
to comply with the Swimming Facility Act (Act) (210 ILCS 125/1 et seq. (West 2010)),
section 820.300(b) of title 77 of the Illinois Administrative Code (Code) (77 Ill. Adm. Code
820.300(b) (2011)), and defendants’ own policies on pool use in force on July 30, 2008.
Specifically, plaintiff claimed that defendants violated section 820.300(b) “by not providing
a lifeguard” and violated the Act “by not preserving the public health, safety, and general
welfare of residents and guests using their swimming pool, including [Darius], [and] by
failing to provide and enforce the minimum required standards for safety for its swimming
pool as required by the [Code].” Plaintiff did not allege how defendants failed to comply with
their own policies, but did quote the following extracts from those policies:
“ ‘The protection, health, and safety of our residents are our primary concern.’ ”
“ ‘An attendant is present in the pool when it is open. No one is permitted in the pool
if the attendant is not present without the consent of management. The attendant has all
authority to maintain the proper conduct and operation of the pool. It is their discretion
to close the pool whenever circumstances warrant it. They also retain the right to order
anyone out of the pool and the surrounding area if they deem their conduct to be
hazardous to themselves, the property, or other residents/guests. If they find it necessary
to summon the police, ambulances etc., they have full authority to do so.’ ”
Plaintiff also alleged that defendants’ policies provided that “residents and guests over the
age of sixteen (16) were allowed to use the pool and the pool area without the requirement
of a supervising adult.”
¶5 On March 11, 2010, plaintiff filed a “motion for summary judgment on liability.” She
attached to the motion the depositions of (1) John Sullivan, who was the pool attendant on
duty at CLT from 11 a.m. to 3 p.m. on July 30, 2008; (2) Rachel Elabbar, the pool attendant
who went on duty at 3 p.m. on July 30 and was on duty when Darius drowned; (3) Nicole
Salter, who was the manager of CLT from 2007 to the present; (4) John Lantz, who was
hired by defendants in 1992 and has been their director of pool operations since 1998; (5)
Oliver Salmeron, who was 12 years old in July 2008 and was using the pool when Darius
died; and (6) Coral Salmeron, Oliver’s sister, who was 17 years old1 in July 2008 and was
using the pool when Darius died. Plaintiff also attached a copy of defendants’ policies that
were in effect on July 30, 2008.
¶6 Defendants responded to plaintiff’s motion and filed their own motion for summary
judgment. They attached the same depositions and many of the same documents that plaintiff
attached to her motion.
¶7 The following is taken from the attachments to the motions. On July 30, 2008, defendants
had in force a document entitled “Cinnamon Lake Towers Pool Regulations” (CLT
regulations), which it gave to any resident of the complex who wished to secure a pass for
1
Though Coral testified that she was born in February 1991, and there is no evidence in the
record to the contrary, plaintiff repeatedly states that Coral was 16 years old in July 2008.
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admission to the pool area. The CLT regulations state that they were promulgated “[i]n
conjunction” with title 77, section 820.360, of the Code (77 Ill. Adm. Code 820.360 (2011)),
which requires that pool operators display conspicuously in the pool area, and enforce,
certain rules specified by the section. The regulations contain the provisions quoted above
dealing with the authority of the pool attendant. The regulations also restrict pool use to
residents of the complex and their guests. The regulations contain other restrictions,
including the following:
“1. *** Residents who are 16 years of age or older may use the pool during the
posted hours of operation. Since there is no proven method for pool attendants to discern
a person’s age, other than what they state, it may be necessary for pool attendants to
refuse admittance to anyone they doubt is of the required age. They may also request that
a person swim a lap in the pool to ascertain whether they will need to be supervised by
a person of at least 16 years of age. Resident(s) must accompany their guest(s).
2. Anyone 15 years of age[2] and under[ ] must be accompanied by a parent or legal
guardian adult (18 years or older) who have [sic] a valid pool pass.”
At the bottom of the regulations is written, in large print:
“*NO DIVING ALLOWED*
We Do Not Have Lifeguards On Duty–Swim At Your Own Risk”
¶8 Lantz testified that part of his responsibility as defendants’ director of pool operations
is to ensure that the signs required by the Code are displayed in the pool area. Lantz checks
the signs twice a summer: first, before the pool opens for the season, and, second, in
midsummer. Lantz did not know when exactly he did the midsummer check in 2008 but
believed that it would have been before July 30. Lantz also noted that the maintenance
supervisor for CLT checks the signs daily. On August 1, 2008, the day after Darius drowned,
Lantz took pictures of the signs. Posted in two places on the fence that encircles the pool area
is a sign that reads: “WARNING. NO LIFEGUARD ON DUTY. Children under the age of
16 should not use pool without an adult in attendance.” Also, two notices are posted to a
bulletin board on the pool house located inside the pool area. The first notice reads:
“NOTICE. This facility is NOT protected by lifeguards. Persons under the age of 16 must
be accompanied by a parent, guardian, or other responsible person at least 16 years of age.
Swimming alone is not recommended.” The second notice begins, “NOTICE. Patron
Regulations for Swimming Pools,” and then states verbatim the rules that section 820.360
requires be posted. One of the rules states: “If present, lifeguards are responsible for
enforcing safety rules and responding to emergencies. Parents or guardians should supervise
their children.”
¶9 The photographs also show rescue devices hanging on the exterior of the pool house. One
is a flotation ring. The other is a shepherd’s hook, which, the witnesses agreed, is designed
to pull a person out of the water.
¶ 10 Salter testified that CLT has had no lifeguard in the time she has been employed there.
2
Witnesses employed by defendants testified that the minimum age is now 16 years of age.
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Rather, CLT uses a pool attendant, who is positioned by the gate to the pool area and restricts
access to those authorized by the CLT regulations. The pool attendant requires residents to
sign a log sheet when they enter the pool area. The log sheet for July 30, 2008, was used as
an exhibit at the depositions and is attached to the summary judgment motions. According
to Salter, the pool attendant has no discretion to allow a person under 16 years of age in the
pool area without a parent or legal guardian. Accordingly, if at any time the parent or
guardian leaves the pool area, the child or ward must leave as well. Salter also stated that,
though no one may enter the pool area who is not a resident or a guest of a resident, the pool
attendant has the “discretion” to permit a guest to remain in the pool area if the resident
leaves temporarily, assuming the guest is at least 16.
¶ 11 Salter acknowledged that Elabbar told police that Darius had been in the pool area for 1½
hours before he drowned at approximately 4:45 p.m. Salter also acknowledged that Elabbar
told her that Shanta “had signed in and left.” Salter noted that Elabbar would have had the
“discretion” to allow Darius to stay if Shanta left.
¶ 12 Salter testified that she hires the pool attendants, who must have CPR training but need
not have lifeguard training or certification. As part of the orientation, Salter shows the
attendants how to use the shepherd’s hook. Salter acknowledged that, when she hired
Elabbar, she knew that Elabbar could not swim.
¶ 13 Counsel represented to Salter at her deposition that several residents of CLT had claimed
that their children had used the pool without a parent or guardian present. Salter had no
personal knowledge of the subject matter of the statements but doubted that the pool
attendant would have let the children use the pool area without a parent or guardian.
¶ 14 Sullivan testified that he was a part-time pool attendant at CLT from 2006 through 2008
and that his shift was 11 a.m. to 3 p.m. He did not have a lifeguard license while he was
working at CLT. Sullivan testified that the pool attendant’s responsibilities were to keep the
pool clean and to make sure that only persons authorized by the CLT regulations were
allowed into the pool area. Sullivan also testified, however, that he tried to avoid distractions
while on duty so that he could “make sure nobody drown[ed].” Sullivan had no memory of
Darius swimming in the pool during his shift on July 30, 2008. Sullivan assumed that, if
Darius was in the pool during Sullivan’s shift, Shanta would have signed in, but the log sheet
for that day shows that she signed in only at 4:30 p.m.
¶ 15 Elabbar testified that she was a part-time pool attendant from May 2007 to September
2008. When Salter hired Elabbar, she knew that Elabbar was unable to swim. As Elabbar
understood them, the duties of the pool attendant were to enforce the CLT regulations, not
to save people from drowning. Elabbar had no lifeguard training. While on duty, the pool
attendant wears a shirt that says “POOL ATTENDANT” on the front and “NOT A
LIFEGUARD. SWIM AT YOUR OWN RISK” on the back. A photograph of the shirt is
attached to each of the motions. Elabbar testified that she was wearing this shirt on July 30,
2008. Asked what “training” she received for the position of pool attendant, Elabbar
answered that Salter showed her how to use the shepherd’s hook. Salter said, “If a victim is
drowning, put it around them and pull it out.”
¶ 16 Asked if she was aware of any occasions where a person under 16 years of age was
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permitted in the pool area without a parent or guardian, Elabbar stated that the only instances
she could recall were the four occasions on which she agreed to watch Christina Mercado
during her shift while Christina’s parents were absent.
¶ 17 Elabbar testified that, when she arrived at the pool area at about 2:30 p.m. on July 30,
2008, to begin her shift, Darius was already in the pool swimming. Also present were Coral,
Oliver, and their friend Antonio. Elabbar knew that Coral was 17. Elabbar spoke with
Sullivan, who told her that everyone in the pool area had signed in. Elabbar did not see
Shanta that day until she came to identify Darius’s body. Elabbar did not know why Shanta’s
name was on the log sheet for July 30, 2008. Elabbar would have known if Shanta had been
there. Elabbar acknowledged that, although she had seen Darius on about seven prior
occasions in July 2008, CLT office records showed that Shanta first obtained her pass for the
CLT pool on July 30, 2008. Elabbar understood the CLT regulations to require that, no
matter his or her age, the guest of a resident cannot enter or remain in the pool area while the
resident is absent.
¶ 18 According to Elabbar, when Darius first visited the pool, she tested his swimming skill
by having him swim a lap. Darius had no problem with the test. On none of the occasions
when Elabbar observed him did Darius struggle to swim, and she considered him a “strong”
swimmer.
¶ 19 Elabbar testified that, during her shift on July 30, 2008, Darius swam with Coral, Oliver,
and Antonio. At one point, Elabbar had to admonish Darius because he was doing flips into
the pool, which are forbidden by CLT policy. At another point, Darius called out that he was
drowning. Elabbar walked over to Darius and saw that he was laughing. Elabbar admonished
Darius not to “cry wolf.” After that, Elabbar did not hear Darius claim that he was drowning.
About 30 minutes after she admonished Darius, she saw Oliver, Coral, and Antonio pulling
Darius out of the pool. Coral shouted to Elabbar that Darius was drowning and that they
needed help. Elabbar went over, helped lift Darius out of the pool, and performed CPR on
him.
¶ 20 Coral testified that she went to the pool on July 30, 2008, with Oliver and Antonio, who
was 16 years old. Elabbar was on duty as the pool attendant and was wearing a T-shirt that
said she was not a lifeguard. Coral knew that there were signs around the pool area warning
that no lifeguard was on duty. Accompanying Coral and the others that day was Katie, a five-
year-old girl whom Coral was babysitting. None of the four had a parent present. Though
Coral’s testimony was somewhat unclear on this point, it appears that she had been to the
pool area before but that July 30, 2008, was the first day she actually went into the pool.
Coral was shown the log sheet for that date but did not see her name on it. Coral noted that
Elabbar would typically sign the sheet for her and would put Coral’s father’s name down
because Elabbar did not remember Coral’s name. Coral testified that, prior to July 30, 2008,
Oliver went to the pool frequently and would go with either their brother Armando or their
father.
¶ 21 Coral testified that she also saw at the pool on July 30, 2008, a girl who was about 15 or
16 and her brother, who was younger than 10. Coral did not know their names but knew they
lived at CLT. These children were not with their parents or another adult.
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¶ 22 Coral testified that, as she and the others were swimming, they were joined by Darius,
whom they had not seen before. Darius swam with them and raced Antonio and Oliver.
Darius told Coral that he had not been swimming in a while, but Darius appeared to Coral
to be a good swimmer. At one point, while Darius was in the deep end of the pool, he began
flailing his arms and saying he was drowning. Because Darius had a smile on his face and
appeared to be laughing, the others thought he was joking. Darius then bobbed in and out of
the water about three times before he sank again. After some time passed and they saw
Darius lying on the bottom of the pool, they all became concerned and dove down to pull him
out. As they were pulling him up onto the deck, Coral shouted to Elabbar for help. Elabbar
came over and performed CPR on Darius. Coral recalled that, as Darius was struggling in the
water, Elabbar was seated with her back to the pool.
¶ 23 Oliver confirmed that he was at CLT’s pool on July 30, 2008, with Coral and Antonio.
Oliver had come to the pool area twice a day that summer. On some of these occasions, he
had been admitted to the pool area while accompanied by his sister or brother while his
parents were absent. According to Oliver, sometime before July 30, 2008, CLT changed its
rules about pool access. Previously, Oliver had to be accompanied by his father or mother,
but after the change he could go with his sister or brother.
¶ 24 Oliver testified that he knew Elabbar was not a lifeguard and that he never saw a
lifeguard posted in the pool area. Oliver saw Elabbar enter the pool only once, when a small
child had walked from the pool steps into deeper water and Elabbar “grabbed” him. Oliver
had never seen Elabbar use the shepherd’s hook or flotation ring to assist a swimmer. Oliver
recalled that, on July 30, 2008, Elabbar wore a shirt that said that she was not a lifeguard and
that pool users swim at their own risk. Also on that date, Oliver saw a similar warning on
signs posted around the pool area.
¶ 25 Oliver testified that, while he was swimming with Coral and Antonio, Darius came into
the pool area. Oliver had not seen him before. Oliver recalled that Darius came alone and
wrote on the log sheet the name of the resident whose guest he was. Darius began swimming
with Oliver and the others. Darius appeared to have no problem swimming. Though Darius
was doing flips into the pool, Elabbar did not admonish him. At one point, while he was in
the deepest part of the pool, Darius said to Oliver, “I can’t swim.” Darius was moving his
legs and arms and was “screaming and yelling,” but because he was also “laughing,” Oliver
thought he was joking. Oliver then grabbed Darius to bring him over to the ladder, but Darius
sank and pulled Oliver under water. Darius sank to the bottom and was there about five
seconds before Oliver became concerned. He, Coral, and Antonio decided to dive down to
see what was wrong. Before they dove, Oliver yelled to Elabbar for help, but she did not
come. When Oliver and the others pulled Darius out of the water and onto the deck, Elabbar
came over and performed CPR on Darius.
¶ 26 In her summary judgment motion, plaintiff argued that defendants were negligent as a
matter of law for failing to provide a lifeguard at the pool. In arguing, first, that defendants
had a duty to provide a lifeguard, plaintiff devoted nearly all of her discussion to certain
statutory and administrative provisions, which, she claimed, imposed the duty. Plaintiff
placed most emphasis on section 820.300(b). In the course of this argument, plaintiff
included the following paragraph:
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“Owners and operators of public pools which include Cinnamon Lakes Pool are ‘***
under a legal duty to make reasonable provision and take reasonable precautions to
provide for the safety of patrons ***.’ [Brumm v. Goodall, 16 Ill. App. 2d 212, 224-25
(1958).] Pool patrons ‘*** have the right to assume that the [pool] facility was properly
prepared for their use and that the “defendant” had taken appropriate measures to make
it safe.’ [Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 426 (1998)].”
Brumm and Jackson discuss the common-law duty that private operators of swimming pools
and swimming beaches owe to their patrons. Plaintiff did not elaborate on how these
decisions bear upon the case at hand.
¶ 27 Next, plaintiff argued that, had a lifeguard been stationed at CLT’s pool when Darius was
struggling, the lifeguard would have had “a non-discretionary duty to observe the pool and
rescue Darius before he drowned,” because “Illinois case law imposes the duty on a lifeguard
at a swimming pool to rescue persons who are drowning regardless of age, sex, gender, or
any other distinction.”
¶ 28 In responding to plaintiff’s summary judgment motion, and in moving themselves for
summary judgment, defendants argued four main points: (1) defendants did not fail to
comply with section 820.300(b) and, alternatively, Darius did not belong to the class of
persons that section 820.300(b) was meant to protect; (2) because the potential danger from
CLT’s pool was open and obvious, defendants “did not owe a duty to protect or warn
[Darius] about any risks associated with the use of a swimming pool”; (3) defendants’
provision of a pool attendant and rescue equipment did not in itself constitute “a voluntary
undertaking to protect the health, safety, and welfare of anyone swimming in the pool”; and
(4) defendants’ own internal policies and procedures did not create a duty of care to Darius.
¶ 29 At the hearing on the motions, the trial court court stated that it was “assum[ing,] *** in
order to analyze [the motions],” that “there were minors [at CLT] who were not supervised
pursuant to [section 820.300(b)]” and that there was a “pattern *** of [CLT] routinely
allowing minors to be present without supervisors.” The trial court agreed with plaintiff that
a lifeguard, if present, would have had a duty to maintain vigilance for all swimmers in
jeopardy, regardless of age or other classification. The court disagreed with plaintiff,
however, that section 820.300(b) required a lifeguard to be present for the benefit of patrons,
like Darius, who were at least 16. The court also disagreed with plaintiff that defendants, by
providing a pool attendant and instructing the attendant in the use of rescue equipment such
as a shepherd’s hook, voluntarily undertook a duty to protect patrons from drowning. The
court concluded that, as a matter of law, defendants owed “no duty to Darius” to provide him
a lifeguard.
¶ 30 Plaintiff filed a motion to reconsider, which the trial court denied. She timely appeals.
¶ 31 ANALYSIS
¶ 32 First, we address defendants’ motion to strike plaintiff’s “statement of facts, along with
her argument,” for failure to cite legal authority or pertinent portions of the record.
Defendants note specifically that plaintiff provides no legal citation for her assertion that “all
[well-]pleaded facts are assumed to be true” for purposes of the summary judgment motions.
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While plaintiff should have included a citation here, the remainder of her brief contains
appropriate citations to legal authority. Defendants also complain that plaintiff cites mostly
to her amended complaint, apparently on the assumption that this court must accept those
allegations as true for purposes of evaluating the motions. Plaintiff may rely on her amended
complaint, but not without limitation. “In reviewing the grant of a motion for summary
judgment all well-pleaded uncontroverted allegations and inferences to be drawn from them
are taken as true.” (Emphasis added.) Crane Erectors & Riggers, Inc. v. La Salle National
Bank, 125 Ill. App. 3d 658, 664 (1984). A party “cannot rely simply on his complaint or
answer to raise an issue of fact when the movant has supplied facts which, if not
contradicted, entitle him to judgment as a matter of law.” Jackson Jordan, Inc. v. Leydig,
Voit & Mayer, 158 Ill. 2d 240, 248 (1994). As defendants recognize, plaintiff does not rely
exclusively on her complaint but also cites the testimony of the deposition witnesses.
Defendants note, however, that instead of citing directly to the deposition testimony, plaintiff
cites to pages of her summary judgment motion that cite and summarize that testimony.
While this is not the preferred method of citation, it does not incline us to strike plaintiff’s
statement of facts. We deny defendants’ motion to strike, and we proceed to the merits.
¶ 33 Plaintiff argues that the trial court erred by denying her summary judgment and by
granting defendants summary judgment. The governing substantive law is that, “[t]o succeed
in a claim for negligence, a plaintiff must establish the existence of a duty, a breach of the
duty, and an injury to the plaintiff that was proximately caused by the breach.” Vancura v.
Katris, 238 Ill. 2d 352, 373 (2010). The governing procedural law is that summary judgment
should be granted only where the pleadings, depositions, admissions, and affidavits on file,
when viewed in a light most favorable to the nonmoving party, show that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law. 735
ILCS 5/2-1005(c) (West 2010); Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43
(2004). “The purpose of summary judgment is not to try a question of fact, but rather to
determine whether a genuine issue of material fact exists.” Adams, 211 Ill. 2d at 42-43.
“In determining whether a genuine issue as to any material fact exists, a court must
construe the pleadings, depositions, admissions, and affidavits strictly against the movant
and liberally in favor of the opponent. A triable issue precluding summary judgment
exists where the material facts are disputed, or where, the material facts being
undisputed, reasonable persons might draw different inferences from the undisputed
facts. The use of the summary judgment procedure is to be encouraged as an aid in the
expeditious disposition of a lawsuit. However, it is a drastic means of disposing of
litigation and, therefore, should be allowed only when the right of the moving party is
clear and free from doubt. [Citations.] In appeals from summary judgment rulings,
review is de novo. [Citation.]” Id. at 43.
The basis on which the trial court granted summary judgment for defendants was that they
had no duty to provide Darius a lifeguard. Whether a duty exists is a question of law. Id.
¶ 34 Before we reach the question of whether defendants owed a duty to Darius, we must
identify precisely how plaintiff claims defendants were negligent. Although plaintiff’s
complaint recited a host of alleged grounds of negligence, she did not assert them all in
addressing the summary judgment motions, nor does she assert them all here. For instance,
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the complaint alleged that defendants were negligent because Elabbar failed to admonish
Darius and the others not to engage in “dangerous activities” and because Elabbar later failed
to save Darius. On appeal, however, plaintiff does not fault defendants for Elabbar’s failure
to act, but rather faults them for failing to provide a more capable individual to monitor the
pool. After quoting section 820.300(b), plaintiff states:
“The unambiguous language of [section 820.300(b)] requires [defendants] to have
a lifeguard present at any time the pool is open based upon [their] admitted actions and
omissions in allowing, on a continuous basis, children under the age of 16 to enter the
pool area when not accompanied by a parent or guardian. There can also be no dispute
that the only adult present who had a duty to save Darius [was] defendants’ employee
Rachel Elabbar, who, by her own admission, cannot swim. Elabbar was hired by property
manager Salter who also cannot swim and who had actual knowledge that Elabbar cannot
swim.”
Plaintiff also does not assert on appeal that defendants were negligent because they violated
their own written policies.
¶ 35 Thus, of the multiple grounds of negligence that plaintiff alleged in her complaint, the
only ground she continues to assert is that defendants were negligent in not having a
lifeguard on duty at the pool. Plaintiff claims that defendants’ duty to post a lifeguard arose
under both common law and statutory and administrative provisions. Plaintiff relies most
heavily on section 820.300(b), which was promulgated by the Illinois Department of Public
Health pursuant to the Act. See 210 ILCS 125/13 (West 2010) (authorizing the Department
to issue “rules [and regulations] as may be necessary *** to protect the health and safety of
the public using *** pools and beaches [and] spas” covered by the Act). Section 820.300(b)
states:
“(b) Lifeguards. Lifeguards shall be provided at all wave pools, and water slides. In
addition, lifeguards shall be provided at all pools, as defined in Section 820.10 [(Ill.
Adm. Code 820.10 (2011))], when persons under the age of 16 are allowed in the pool
enclosure specified in Section 820.200(a) [(Ill. Adm. Code 820.200(a) (2011))] without
supervision by a parent, guardian or other responsible person at least 16 years of age. At
facilities where lifeguards are not provided, a sign shall be posted that states ‘This facility
is not protected by lifeguards. Persons under the age of 16 must be accompanied by a
parent, guardian or other responsible person at least 16 years of age. Swimming alone is
not recommended.’ ” Ill. Adm. Code 820.300(b) (2011).
There is no question that the CLT pool and pool area are within the class of “pools” and
“pool enclosures” governed by section 820.300(b). Where plaintiff falters, however, is in
contending that the regulation was intended to protect persons of Darius’s age. “A violation
of a statute or ordinance designed to protect human life or property is prima facie evidence
of negligence. [Citation.] A party injured by such a violation may recover only by showing
that the violation proximately caused his injury and the statute or ordinance was intended to
protect a class of persons to which he belongs from the kind of injury that he suffered.”
Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991). Unquestionably, drowning
is the principal harm that section 820.300(b) is designed to prevent. On this point, plaintiff
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successfully distinguishes the present case from Buerkett v. Illinois Power Co., 384 Ill. App.
3d 418, 426 (2008), where the plaintiff, an independent landscaper, was injured by what he
claimed was a hazard created by the Illinois Power Company (IPC). The plaintiff argued that
section 8-101 of the Public Utilities Act (220 ILCS 5/8-101 (West 2008)) imposed on the
IPC a duty not to create such dangerous conditions. Section 8-101 of the Act provided:
“A public utility shall furnish, provide, and maintain such service instrumentalities,
equipment, and facilities as shall promote the safety, health, comfort, and convenience
of its patrons, employees, and public and as shall be in all respects adequate, efficient,
just, and reasonable.” 220 ILCS 5/8-101 (West 2008).
The court held that this section was “not designed to protect injured parties,” but, rather, it
and the remainder of the Act “ ‘were designed for the protection of the public generally, and
to insure the service of a continual supply of electrical energy without due interruption.’ ”
Buerkett, 384 Ill. App. 3d at 426 (quoting Longnecker v. Illinois Power Co., 64 Ill. App. 3d
634, 641 (1978)).
¶ 36 It is not enough, however, that the decedent suffered the kind of harm the provision was
meant to prevent. The decedent must also fall within the class of persons the provision was
meant to protect. See Petrauskas v. Wexenthaller Realty Management, Inc., 186 Ill. App. 3d
820, 830 (1989) (“The plaintiff must be within the class of persons intended to be protected
by the [provision] and the resulting harm must be of the kind that the ordinance was intended
to prevent.” (Emphasis added.)). For instance, the plaintiff in Gallick v. Novotney, 124 Ill.
App. 3d 756 (1984), sued the defendant because she fell and injured herself outside the
defendant’s store, and she alleged that her fall was the result of an elevation difference
between contiguous sidewalk slabs. The plaintiff challenged on appeal the trial court’s
refusal to provide the jury with an instruction adopting as the standard of care the Facilities
for the Handicapped Act (Ill. Rev. Stat. 1981, ch. 111½, ¶ 3701 et seq.). The appellate court
upheld the refusal, reasoning that the Handicapped Act applied only to physically
handicapped persons and that the plaintiff did not demonstrate that she was within that class.
Gallick, 124 Ill. App. 3d at 759-60.
¶ 37 Section 820.300(b) requires lifeguards “when persons under the age of 16 are allowed
in the pool enclosure *** without supervision by a parent, guardian or other responsible
person at least 16 years of age.”3 (Emphasis added.) 77 Ill. Adm. Code 820.300(b) (2011).
This is an explicit distinction based on age. We must read an administrative regulation as a
whole, giving effect to every word, clause, and sentence and not rendering any part of it
superfluous or meaningless. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). We must not,
however, embrace a literal interpretation of a regulation if it would produce an absurd or
unjust result. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). We find no bar to giving effect
to the plain wording of section 820.300(b). Legislatures and administrative bodies have the
general power to distinguish and limit, and age-based distinctions are inevitable. Some of the
lines might seem fine. For instance, plaintiff notes that, though Darius was 17 when he
3
As we note below, for all but wave pools and water slides, no lifeguard is required if a
notice with the language specified in section 820.300(b) is posted.
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drowned, he was still a minor under Illinois law. See 755 ILCS 5/11-1 (West 2010) (“A
minor is a person who has not attained the age of 18 years.”). Of course, anyone, regardless
of age, might benefit from the presence of a lifeguard, just as anyone, regardless of a physical
handicap, might benefit from the requirement that facilities be handicapped accessible. The
question, however, is whether it was reasonable for the Department to identify age 16 as a
significant threshold in terms of one’s physical maturity and to base its requirements on that
threshold. We acknowledge that a lifeguard, if present, would have had a duty to monitor all
persons of whatever age and may well have rescued Darius. This does not, however, allow
us to alter the express classification made by the Department. We hold that Darius was not
within the class of persons that section 820.300(b) was intended to protect.
¶ 38 Even if section 820.300(b) did create a duty to Darius, the undisputed facts show that
defendants did not breach that duty. See Adams, 211 Ill. 2d at 43-44 (“the issues of breach
and proximate cause are factual matters for a jury to decide [citation], provided there is a
genuine issue of material fact regarding those issues”). The record shows that, on July 30,
2008, there was prominently posted in the CLT pool area a notice that read: “NOTICE. This
facility is NOT protected by lifeguards. Persons under the age of 16 must be accompanied
by a parent, guardian, or other responsible person at least 16 years of age. Swimming alone
is not recommended.” This tracked verbatim the language that section 820.300(b) requires
be displayed where lifeguards “are not provided.”
¶ 39 Plaintiff, however, asserts: “A sign is sufficient only at facilities that are not required to
have lifeguards present. The code does not allow an entity to simply choose between having
lifeguards present and posting a sign.” Plaintiff does not support this with any textual
analysis, and her position is in fact irreconcilable with the text. The second sentence of
section 820.300(b) states that lifeguards are required when “persons under the age of 16 are
allowed in the pool enclosure *** without supervision by a parent, guardian or other
responsible person at least 16 years of age.” Ill. Adm. Code 820.300(b) (2011). As we read
section 820.300(b), there are two classes of pools: (1) wave pools and water slides, where
a lifeguard must, without exception, be provided; and (2) all other pools, as defined in
section 820.10, where either a lifeguard must be provided or a sign must be posted that no
lifeguard is on duty and that persons under 16 “must be accompanied by a parent, guardian,
or other responsible person at least 16 years of age.” We arrive at this conclusion by first
noting that the final sentence of section 820.300(b) does not read, “At facilities where
lifeguards are not required” but, “At facilities where lifeguards are not provided.” The
question becomes, in which facilities is it permitted not to provide lifeguards? The
requirement of a lifeguard for wave pools and water slides appears categorical, but for other
pools lifeguards are required only when persons under 16 are “allowed in the pool enclosure
*** without supervision by a parent, guardian or other responsible person at least 16 years
of age.” Construing the second and final sentences of section 820.300(b) together, we
conclude that, where a pool operator posts a notice that a lifeguard is not on duty and that
persons under the age of 16 must be accompanied by a parent, guardian, or other responsible
person at least 16 years of age, the pool operator has, under the section, otherwise disallowed
such persons under 16 years of age from the pool enclosure. Hence, except for wave pools
and water slides, a lifeguard need not be provided as long as the notice specified in the final
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sentence of section 820.300(b) is posted. This is the case even if the pool operator has no
system for monitoring whether persons under 16 years of age are in the pool area without a
responsible person at least 16. Accordingly, we do not find it material that, as plaintiff
repeatedly claims, defendants frequently allowed children into the pool area without a
responsible person at least 16. As there is no dispute that defendants posted the notice
specified in section 820.300(b), there could have been no breach of duty to Darius–assuming,
of course, that a duty was owed to him in the first place.
¶ 40 Another source from which plaintiff seeks to derive a duty is section 2 of the Act, which
provides:
“Legislative purpose. It is found that there exists, and may in the future exist, within the
State of Illinois public swimming pools, spas, water slides, public bathing beaches, and
other swimming facilities which are substandard in one or more important features of
safety, cleanliness or sanitation. Such conditions adversely affect the public health, safety
and general welfare of persons.
Therefore, the purpose of this Act is to protect, promote and preserve the public
health, safety and general welfare by providing for the establishment and enforcement
of minimum standards for safety, cleanliness and general sanitation for all swimming
pools, spas, water slides, public bathing beaches, and other aquatic features now in
existence or hereafter constructed, developed, or altered and to provide for inspection and
licensing of all such facilities.” 210 ILCS 125/2 (West 2010).
This provision is far too broad to be read as imposing a specific duty of the kind plaintiff
claims was owed to Darius by defendants.
¶ 41 Plaintiff alternatively argues that the common law imposed on defendants the duty to
provide a lifeguard. Plaintiff claims that, after her “exhaustive search of Illinois law,” she has
found no “cases holding that a pool operator does not have a duty of safety to a minor.”
(Emphasis added.) Plaintiff, however, devotes virtually no effort to describing what Illinois
case law does hold as to a pool operator’s duty to a minor. If, as our own research suggests,
there are no recent cases addressing whether and when a lifeguard must be provided for
minors, it may well be because the legislature has occupied this area since 1974, when the
Act was passed. See Pub. Act 78-1149 (eff. Aug. 28, 1974) (adding Ill. Rev. Stat. 1975, ch.
111½, ¶ 1201 et seq.). The legislature’s intervention in this area was noted by our supreme
court in Cope v. Doe, 102 Ill. 2d 278 (1984), where the plaintiff sued the owner of an
apartment complex after the decedent, a seven-year-old boy, drowned in a retention pond on
the property. The court rejected the plaintiff’s suggested analogy between the retention pond
and a swimming pool:
“Plaintiff argues that defendants, as commercial landowners, owed a duty to take
reasonable precautions for the safety of those patrons who were invited to use water on
their land for recreational purposes. Plaintiff urges that this case is analogous to those
where liability was imposed on an operator of a public bathing facility for the drowning
of a child. ***
*** Our courts and the legislature have traditionally regarded public swimming pools
differently than other bodies of water. [Citation.] The law in Illinois does place a duty
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upon private operators of public swimming pools or public bathing resorts to take
precautions for the safety of their patrons.” Id. at 287-88.
¶ 42 In Blankenship v. Peoria Park District, 269 Ill. App. 3d 416 (1995), the legislature’s
action in the matter of swimming pools was one of the appellate court’s bases for refusing
to hold that the defendant, a park district, had a common-law duty to supervise adult
swimmers in its pool. The trial court in Blankenship had dismissed, for failure to state a
cause of action, the plaintiff’s complaint alleging that the park district was liable because the
decedent drowned in its pool while the lifeguards on duty were on break. The appellate court
reversed the dismissal, holding that the plaintiff had adequately alleged that the district had
a duty of care to the decedent because it voluntarily undertook to protect swimmers by hiring
lifeguards. Id. at 423-24. The court also held, however, that the district had no duty to
supervise the decedent independent of the voluntarily assumed obligation. The court gave
several reasons for this specific holding. First, the court found no “Illinois case imposing
liability for injuries suffered by an adult due to lack of supervision at a swimming pool.”
(Emphasis added.) Id. at 421-22. The court noted that the cases cited by the plaintiff–Cope,
Brumm, and Decatur Amusement Park Co. v. Porter, 137 Ill. App. 448 (1907)–each involved
minors. Second, the court observed that “the plaintiff’s status as a minor or an adult should
make a difference” in determining whether a duty to supervise exists, since “the
foreseeability and likelihood of injury would be substantially less for a responsible adult
swimmer than for a child.” (Emphasis in original.) Blankenship, 269 Ill. App. 3d at 422.
Third, and last, the court found “highly persuasive [the defendant’s] argument that the
administrative regulations promulgated pursuant to [the Act] define the scope of its duty to
supervise.” Id. The court went on:
“Those regulations require lifeguards only at swimming pools which allow persons 16
or under to enter ‘without a responsible person 17 years of age or older present’[4] (77 Ill.
Adm. Code § 820.300 (1985)). Thus the Illinois legislature and the Department of Public
Health have expressed their judgment that adult swimmers are not in need of the
protection provided by lifeguards. We also note that our supreme court cited to [the Act]
in support of its statement in Cope that the courts and the legislature ‘have traditionally
regarded public swimming pools differently from other bodies of water.’ (Cope, 102 Ill.
2d at 288, 464 N.E.2d at 1028.) It would appear that the difference referred to in Cope
has traditionally been limited to situations involving minors, not adult swimmers.” Id.
¶ 43 Plaintiff finds it telling that Blankenship expressly noted that the decedent in that case
was not a minor. Blankenship, however, did not purport to define a pool operator’s duty to
minors, and so plaintiff must establish through other authorities that defendants had a duty
to provide a lifeguard. Plaintiff has failed in this effort, as we explain below. We note that,
though the Blankenship court found “highly persuasive” the defendant’s claim that the Act
and its regulations “defined the scope of its duty to supervise” the decedent, the court did not
conclude that the Act and its regulations were the exclusive source for that duty. We need
not decide that issue, because plaintiff has failed, in any event, to glean from the common
4
The minimum age of the “responsible person” has since been lowered to 16.
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law a basis for holding that defendants had a duty to provide a lifeguard.
¶ 44 In the course of her discussion of the common law, plaintiff reproduces verbatim the
paragraph in her summary judgment motion where she cited Brumm and Jackson. Here,
again, however, she fails to discuss how these decisions apply to the case at hand, but relies
strictly on their broad pronouncements, e.g., “[T]he defendant was under a legal duty to make
reasonable provisions and to take reasonable precautions to provide for the safety of his
patrons” (Brumm, 16 Ill. App. 2d at 224-25), and, “When [the defendant] opened [the beach]
to the public and charged admission fees for that purpose, patrons had the right to assume
that the facility was properly prepared for their use and that [the defendant] had taken
appropriate measures to make it safe” (Jackson, 185 Ill. 2d at 426). As we read these cases,
plaintiff could not have used them to her advantage anyway.
¶ 45 Jackson determined that there was a question of material fact whether the defendants,
operators of a lakeside swimming beach, owed a duty to swimmers to keep the water free of
underwater obstructions such as the pipe that the decedent allegedly struck when he dove into
the water. Jackson, 185 Ill. 2d at 426. Here, plaintiff alleges no comparable hazard, but rests
her complaint entirely on the inherent danger of the pool. Jackson, however, determined that
the plaintiff survived summary judgment only because she alleged a hazard that was not
“open and obvious.” See Jackson, 185 Ill. 2d at 426 (“Cases addressing the open and obvious
danger of water are premised on the notion that bodies of water pose two particular types of
risk: the risk of drowning and the risk of injury from diving into water that is too shallow.
Neither of those risks is at issue here.”).
¶ 46 In Brumm, the decedent, a 14-year-old boy, drowned at a public pool operated by the
defendant. The decedent’s estate brought a negligence action. The evidence at trial showed
that the pool was 105 feet long, 45 feet wide, and up to 9 feet deep. There were three
lifeguards on duty when the decedent drowned. The jury returned a verdict for the plaintiff,
which the trial court upheld. The court cited evidence that the lifeguards did not keep an
adequate lookout. The court also relied on the opinion testimony of a pool operator that the
pool had too few guards in the deep end, where the decedent drowned. Brumm, 16 Ill. App.
2d at 224.
¶ 47 Brumm concerned a death at a pool where the operator chose to post lifeguards. Brumm
provides no guidance on when the lifeguards should be posted in the first instance. Notably,
Brumm was decided two decades before the Act went into effect.
¶ 48 Another case plaintiff cites is Decatur, which Brumm cited in passing. Plaintiff fails to
mention the fact that Decatur was decided before 1935, which would ordinarily mean that
the case is not binding but only persuasive authority. See Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 95 (1996). Since, however, Decatur was cited approvingly
by our supreme court in Cope (see Cope, 102 Ill. 2d at 288), we consider it lifted out of
limbo. In Decatur, the plaintiff’s decedent, a 14-year-old boy, drowned in a pond operated
by the defendant as part of an amusement park. The plaintiff brought a negligence action, and
the jury returned a verdict in his favor. On appeal, the defendant argued that none of the four
counts submitted to the jury stated a cause of action. The appellate court disagreed, holding
that counts two and three did not state a cause of action while counts one and four did. The
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court explained:
“[I]t was the duty of [the defendant] to make reasonable provision to guard against those
accidents which common knowledge and experience teach are liable to befall those
engaging in the sport which [the defendant] had invited the public to participate in.
*** Each of [counts II and III] is based solely upon the assumption that it is
actionable negligence not to have an experienced or competent swimmer or diver at hand
to render aid to those liable to become strangled, etc.
*** [W]hile it may be and is right to require one occupying the place of [the
defendant] to have attendants or guards to render assistance in time of need, we do not
see how it can follow that such reasonable provision would require the furnishing of a
competent or experienced swimmer and diver, and that a failure to so furnish such
experienced swimmer and diver would of itself and alone constitute negligence. There
may be and quite likely are other means which can be employed in such a case which are
as effectual as those made use of by an expert swimmer or diver. The counts which aver
only the absence of such a swimmer or diver do not state a good cause of action.”
Decatur, 137 Ill. App. at 452-53.
Decatur appears to hold that it is insufficient as a matter of law to claim that a private
operator of a public swimming pool, beach, or other body of water was negligent simply
because it did not provide an experienced swimmer or diver to supervise users. Since, as we
have noted, the only basis for liability that plaintiff continues to assert on appeal is that
defendants failed to post a lifeguard, Decatur appears to undercut rather than support
plaintiff’s position. Plaintiff, we note, does not even discuss the facts of Decatur.
¶ 49 The final case plaintiff cites is this district’s decision in Lawson v. Schmitt Boulder Hill,
Inc., 398 Ill. App. 3d 127 (2010). The plaintiff, an employee of a McDonald’s franchise
owned by Schmitt Boulder Hill, Inc. (Schmitt), was assaulted in the parking lot of Schmitt’s
restaurant in the early morning hours. The complaint, which was brought against both
Schmitt and McDonald’s, alleged that McDonald’s had a duty of care to the plaintiff because
it had issued to its franchisees security standards addressing such issues as the lighting of
their parking lots and had dispatched McDonald’s security personnel to franchisees to
determine compliance with the standards. McDonald’s moved to dismiss the claim under
section 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-619(a) (West 2008)).
McDonald’s claimed as an affirmative defense that it owed no duty of care to the plaintiff.
McDonald’s attached to its motion an affidavit from an employee averring that McDonald’s
did not own the Schmitt franchise and had no right to direct its day-to-day operations. The
trial court granted the motion to dismiss, but we reversed:
“[The plaintiff’s] allegations, which must be taken as true for purposes of the motion to
dismiss, establish that *** McDonald’s mandated compliance with security procedures.
*** [W]hether a franchisor maintains mandatory security procedures is a crucial factor
in determining whether the franchisor has voluntarily undertaken a duty of care toward
a franchisee’s employees. Given the procedural posture of the case, it is unnecessary to
decide whether these allegations are sufficient in themselves to establish a duty.
McDonald’s had the initial burden to affirmatively show that, notwithstanding the well-
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pleaded allegations of plaintiff’s complaint, it did not undertake a duty of care.
McDonald’s failed to meet that burden. Its affidavit indicates that it lacks authority to
control the day-to-day operations of Schmitt’s restaurant or to hire, discharge, or
discipline Schmitt’s employees, but none of the pertinent cases suggest that such
authority is a prerequisite to the recognition of a duty.” Lawson, 398 Ill. App. 3d at 133.
¶ 50 Plaintiff claims that Lawson’s holding can be analogized to the present case. She
maintains that, just as McDonald’s could owe a duty of care to one who was not its
employee, so could defendants owe a duty to one who was not within the class of persons
specified in section 820.300(b). Lawson, however, did not purport to expand the law
determining when a statute or regulation may be held to establish a standard of care. The
plaintiff in Lawson did not attempt to derive a standard of care from a statute or regulation,
but alleged rather that McDonald’s voluntarily undertook a duty by generating its own
standards. Plaintiff does not invoke the doctrine of voluntary undertaking here; she does not
identify any steps that she claims defendants took toward ensuring safety in the pool. See
Wakulich v. Mraz, 203 Ill. 2d 223, 241 (2003) (voluntary-undertaking doctrine holds that one
who voluntarily undertakes to render services to another is subject to liability for bodily
injury or physical damage caused by the failure to exercise reasonable care in performing the
undertaking). Rather, plaintiff concentrates entirely on defendants’ omissions.
¶ 51 CONCLUSION
¶ 52 We hold that, as a matter of law, defendants owed no duty to Darius to provide a
lifeguard at the CLT pool. Alternatively, we hold that, even if a duty to Darius could be
derived from section 820.300(b), defendants fulfilled that duty by posting the proper notice
in lieu of providing a lifeguard. The trial court did not err in granting summary judgment for
defendants and in denying summary judgment for plaintiff.
¶ 53 Affirmed.
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