Barnett v. Zion Park District

665 N.E.2d 808, 171 Ill. 2d 378, 216 Ill. Dec. 550, 1996 Ill. LEXIS 60

• Court: Illinois Supreme Court
• Decided: April 18, 1996
• Docket: 78161
• Status: Published

Opinions

JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Rebecca Barnett, as special administrator of the estate of her son, Travis King, brought an action in the circuit court of Lake County against defendant, the Zion Park District (District). Travis drowned in a swimming pool owned and operated by the District.

The trial court granted the District’s motion for summary judgment and the appellate court affirmed. 267 Ill. App. 3d 283. We allowed Barnett’s petition for leave to appeal (145 Ill. 2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

The record contains the following pertinent facts. The District is a local public entity as defined by the Local Governmental and Governmental Employees Tort Immunity Act (hereafter Tort Immunity Act or Act) (745 ILCS 10/1 — 206 (West 1992)). On June 9, 1990, the District owned and operated the Port Shiloh swimming complex. The facility included a pool alternatively referred to as the "old,” "north,” or "deep” pool (hereafter deep pool); the "south” pool; and the "baby” pool. The deep pool is 75 feet long, 45 feet wide, and 3 feet deep at the shallow end and 11 feet deep at the deep end.

June 9 was the first day of the 1990 swimming season. A sign was posted at the entrance to the facility’s locker rooms that stated, inter alla, the dates and hours of operation and the general operating rules. Eleven lifeguards were on duty at the three swimming pools. Six lifeguards were on duty at the deep pool; Illinois Department of Public Health regulations required only two or three. 77 Ill. Adm. Code § 820.300(b)(3)(B) (1988 Supp.). The six lifeguards on duty at the deep pool were certified by the American Red Cross in lifesaving, cardiopulmonary resuscitation (CPR), and first aid, also required by public health regulations. They had received additional training from the District in lifesaving skills, CPR, and preparing for emergencies. The six lifeguards were actively overseeing, directing, and managing the pool.

The record contains evidence that 10-year-old Travis was walking forward on a diving board when he slipped, fell back, hit his head on top of the board, and fell into the water. Travis struggled, then sank towards the bottom of the pool. At least two pool patrons alerted two lifeguards to Travis’ distress. However, the lifeguards dismissed their pleas and failed to respond, saying that they did not see anyone fall.

After Travis was in the water for approximately two or three minutes, a pool patron finally dove in and brought Travis up to the surface. Lifeguards pulled Travis out of the water and unsuccessfully administered CPR Travis died a short time later.

Barnett brought an action against the District. Her original complaint contained wrongful death and survival claims that alleged negligence and willful and wanton misconduct. The negligence counts were dismissed from her second-amended complaint, and Barnett proceeded on her willful and wanton counts alone.

In her fifth-amended complaint, Barnett alleged that the District committed the following willful and wanton misconduct:

"(a) Failed to initiate lifesaving procedures to [rescue Travis] after being told by another patron of the pool that [he] had slipped, [fallen] and struck his head on a diving board and dropped into the water;

(b) Did not initiate lifesaving procedures to [rescue Travis] after being told by another patron of the pool that [Travis] was drowning;

(c) Did not initiate lifesaving procedures to [rescue Travis] after being told by another person at the pool that [Travis] was having trouble swimming.”

The trial court granted the District’s motion for summary judgment. Barnett appeals.

DISCUSSION

We address at the outset two procedural issues. Barnett assigns error to the dismissal of the negligence counts from her prior complaint. She also contends that this is not a proper case for summary judgment.

Dismissal of Negligence Counts from Prior Complaint Barnett assigns error to the trial court’s dismissal of her negligence counts from her second-amended complaint. However, Barnett did not stand on the dismissed counts and appeal their dismissal prior to pleading over, i.e., filing a subsequent amended complaint. When a complaint is dismissed, a plaintiff must stand by the complaint if he or she wishes to have the dismissal reviewed. If the plaintiff pleads over, he or she waives the dismissal and has no right to assign error thereto. Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 155 (1983), quoting Cottrell v. Gerson, 371 Ill. 174, 179 (1939); see also Villareal v. Trevino, 30 Ill. App. 2d 77, 81-82 (1961).

Barnett insists that the negligence counts in her second-amended complaint are part of her fifth-amended complaint. However, Barnett did not reallege or otherwise incorporate those counts in her third, fourth, or fifth amended complaint. Rather, she proceeded on her willful and wanton counts alone. Where an amended pleading is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be part of the record for most purposes and is effectively abandoned and withdrawn. Foxcroft, 96 Ill. 2d at 154, quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963). Allegations in a former complaint not incorporated in the final amended complaint are deemed waived. Foxcroft, 96 Ill. 2d at 155. Thus, Barnett has waived appellate review of the dismissal of the negligence counts.

Availability of Summary Judgment

Barnett contends that this is not a proper case for summary judgment. In reviewing a trial court’s entry of summary judgment, the only issue on appeal is whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2 — 1005(c) (West 1992). A court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. Review of summary judgment rulings is de nova. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 131-32 (1992).

Barnett argues that genuine issues of material fact exist that preclude the entry of summary judgment. She labels as questions of fact whether the lifeguards committed willful and wanton misconduct and whether the lifeguards provided "supervision” within the meaning of section 3 — 108(b) of the Tort Immunity Act (745 ILCS 10/3 — 108(b) (West 1992)). However, these issues ultimately involve interpreting the Tort Immunity Act, which is purely a matter of law and appropriate for summary judgment. See Lane v. Titchenel, 204 Ill. App. 3d 1049, 1053 (1990); Antonides v. Plascon, Inc., 103 Ill. App. 3d 78, 81 (1981). Likewise, the related question of whether the District owed Travis a duty of care is a matter of law and appropriate for summary judgment. See Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991).

Tort Immunity Act

We now reach the merits of this appeal. In seeking and obtaining summary judgment, the District argued that it was not liable in tort as a matter of law because: (1) it did not owe Travis any legal duty, and (2) it was immune from liability under section 3 — 108(b) of the Tort Immunity Act (745 ILCS 10/3 — 108(b) (West 1992)).

Under the doctrine of sovereign immunity, a governmental unit in Illinois was immune from tort liability. However, this court abolished sovereign immunity in 1959. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). In response to Molitor, the legislature in 1965 enacted the Tort Immunity Act (745 ILCS 10/1 — 101 et seq. (West 1992)). Also, the 1970 Illinois Constitution abolishes the doctrine of sovereign immunity, except as the legislature may provide by statute. Ill. Const. 1970, art. XIII, § 4. The Tort Immunity Act adopted the general principle that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506-07 (1990). Based on these developments, "[g]overnmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability.” LaMonte v. City of Belleville, 41 Ill. App. 3d 697, 705 (1976), citing Krieger v. Village of Carpentersville, 8 Ill. App. 3d 243, 247 (1972); accord Austin View Civic Ass’n v. City of Palos Heights, 85 Ill. App. 3d 89, 95 (1980).

Duty

Barnett contends that the District owed Travis a duty of reasonable care. There can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. Boyd v. Racine Currency Exchange, Inc., 56 Ill. 2d 95, 97 (1973); Barnes v. Washington, 56 Ill. 2d 22, 26 (1973). It is settled that the Tort Immunity Act does not impose on a municipality any new duties. Rather, the Act merely codifies those duties existing at common law, to which the subsequently delineated immunities apply. West v. Kirkham, 147 Ill. 2d 1, 14 (1992); Vesey, 145 Ill. 2d at 412-13. Thus, we must look to the common law and other statutes to determine whether the District owed Travis a legal duty. See Vesey, 145 Ill. 2d at 413.

We agree with the appellate court that the District owed Travis a common law duty of reasonable care. Unquestionably, at common law a private operator of a public swimming pool or public bathing resort would have owed Travis a duty to make reasonable provisions and to take reasonable precautions for his safety. See Cope v. Doe, 102 Ill. 2d 278, 288 (1984); Brumm v. Goodall, 16 Ill. App. 2d 212, 224-25 (1958); Decatur Amusement Park Co. v. Porter, 137 Ill. App. 448, 452 (1907). The appellate court in this case, agreeing with Blankenship v. Peoria Park District, 269 Ill. App. 3d 416 (1994), reasoned that since the District is as liable in tort as a private tortfeasor absent an immunity statute (see LaMonte, 41 Ill. App. 3d at 705), then the District likewise owed Travis a duty of reasonable care. 267 Ill. App. 3d at 288; Blankenship, 269 Ill. App. 3d at 419-21.

In reaching this conclusion, the appellate court in this case and in Blankenship declined to follow Brown v. Chicago Park District, 218 Ill. App. 3d 612 (1991). In Brown, the appellate court held that the defendant park district did not owe a private plaintiff the common law duty of reasonable care owed by private operators of public swimming pools. The Brown court, relying on Gebhardt v. Village of LaGrange Park, 354 Ill. 234 (1933), reasoned that the park district’s operation of a swimming pool was a governmental function rather than a proprietary function. Therefore, the park district was immune from liability. Brown, 218 Ill. App. 3d at 616, relying on Gebhardt, 354 111. at 239-40.

This court rejected the reasoning of Brown over 35 years ago. In List v. O’Connor, 19 Ill. 2d 337 (1960), the appellate court had relied on Gebhardt in finding that a municipal corporation’s maintenance and operation of parks was a governmental function, thus immunizing the defendant park district from tort liability. List, 19 Ill. 2d at 339, citing List v. O’Connor, 21 Ill. App. 2d 399 (1959). This court disapproved of such an analysis as applied to park districts, stating that "the decision in the Molitor case, in discussing the doctrine of sovereign immunity, dismisses as immaterial any distinction between governmental or proprietary functions.” List, 19 Ill. 2d at 340; see Blankenship, 269 Ill. App. 3d at 421; Barnett, 267 Ill. App. 3d at 288.

Brown employed the same analysis that this court disapproved of in List. We hold that Brown is erroneous; it is hereby overruled.

It is important to recognize that the existence of a duty and the existence of an immunity are separate issues. We have concluded that the District owed Travis a common law duty of reasonable care. We now address whether the District is immune from liability if it breached that duty.

Section 3 — 108

Barnett contends that section 3 — 108 of the Tort Immunity Act does not immunize the District from liability in this case. That section provides:

"§ 3 — 108. (a) Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.

(b) Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours for such use, the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said hours posted.” 745 ILCS 10/3 — 108 (West 1992).

In interpreting section 3 — 108, our primary goal is to ascertain and give effect to the intention of the legislature. We seek the legislative intent primarily from the language used in the Tort Immunity Act. We evaluate the Act as a whole; we construe each provision in connection with every other section. See Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 91 (1992). If we can ascertain the legislative intent from the plain language of the Act itself, that intent must prevail, and we will give it effect without resorting to other interpretive aids. See Envirite v. Illinois Environmental Protection Agency, 158 Ill. 2d 210, 216-17 (1994). We must not depart from the plain language of the Act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. See Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).

Willful and Wanton Misconduct

Barnett first argues that section 3 — 108 does not establish unconditional immunity, but rather provides an exception for willful and wanton misconduct. The District and a supporting amicus initially respond that Barnett has waived this issue for review. The record shows that she did not rely on this argument in opposing the District’s motion for summary judgment or in seeking reversal before the appellate court. Since Barnett presents this issue for the first time on appeal, we would normally deem it waived. See Snow v. Dixon, 66 Ill. 2d 443, 453 (1977).

However, we will address this issue. The waiver rule is an admonition to litigants and not a limitation upon the jurisdiction of a reviewing court. This is a case where this court’s responsibility for a just result and for the maintenance of a sound and uniform body of precedent overrides considerations of waiver. See American Federation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480 (1991), citing Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967).

The record also shows that Barnett did not raise this issue in her petition for leave to appeal to this court, but rather waited until her initial brief to assert the issue. Consequently, we need not consider this issue and could deem it waived. See Rodgers v. St. Mary’s Hospital, 149 Ill. 2d 302, 313 (1992); Dineen v. City of Chicago, 125 Ill. 2d 248, 265 (1988). However, we exercise our discretion to address this issue. See Schatz v. Abbott Laboratories, Inc., 51 Ill. 2d 143, 145 (1972).

Barnett argues specifically that subsection (a) does not establish unconditional immunity, but rather provides an exception for willful and wanton misconduct. Barnett notes that subsection (a) establishes an immunity for failure to supervise, "[e]xcept as otherwise provided by this Act.” She reasons that this phrase requires that subsection (a) be read in conjunction with other sections of the Tort Immunity Act.

One such section is section 2 — 202, which provides that "[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2 — 202 (West 1992). This section immunizes liability for negligence and expressly does not immunize liability for willful and wanton misconduct. According to Barnett, sections 2 — 202 and 3 — 108(a), "when analyzed together, do not provide immunity from lawsuits brought under a theory of willful and wanton misconduct.” Since she alleged willful and wanton misconduct in this case, Barnett, concludes that the District was not immune from liability and was not entitled to summary judgment.

Barnett’s reliance on section 2 — 202 is misplaced. Section 2 — 202 is not a general exception to all of the other immunities established by the Tort Immunity Act. That section expressly immunizes a public employee from liability only for the employee’s negligent "act or omission in the execution or enforcement of any law.” 745 ILCS 10/2 — 202 (West 1992). Based on this plain language, this section does not grant immunity for every act or omission of public employees while on duty. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991), citing Arnolt v. City of Highland Park, 52 Ill. 2d 27, 33 (1972). Rather, section 2 — 202 provides immunity only where the public employee is negligent while actually engaged in the execution or enforcement of a law. Arnolt, 52 Ill. 2d at 33.

In the present case, the District’s lifeguards were not executing or enforcing a law in any sense. Neither the Illinois Department of Public Health regulations (77 Ill. Adm. Code § 820.300 et seq. (1988 Supp.)) nor their enabling statute (210 ILCS 125/1 et seq. (West 1992)) prescribe how a lifeguard should supervise a swimming pool. Rather, the regulations only prescribe when and how many lifeguards are necessary and their qualifications. The lifeguards in the present case were simply on duty. They were not actually executing or enforcing any law during the course of their supervision of the Port Shiloh swimming pools. Consequently, section 2 — 202 does not apply to this case.

Section 2 — 202 aside, Barnett also alleges that the Tort Immunity Act generally does not establish unconditional immunity, but rather provides an exception for willful and wanton misconduct. Thus, according to Barnett, section 3 — 108 does not immunize liability for willful and wanton misconduct and the District is not entitled to summary judgment.

We disagree. The plain language of section 3 — 108 is unambiguous. That provision does not contain an immunity exception for willful and wanton misconduct. Where the legislature has chosen to limit an immunity to cover only negligence, it has unambiguously done so. See 745 ILCS 10/2 — 202, 2 — 210, 3 — 106, 3 — 109(c)(2), 4 — 105, 5 — 103(b), 5 — 106 (West 1992). Since the legislature omitted such a limitation from the plain language of section 3 — 108, then the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct. See West, 147 Ill. 2d at 6-7; Payne v. Lake Forest Community High School District 115, 268 Ill. App. 3d 783, 785-87 (1994).

Supervision

Barnett next argues that the District failed to provide Travis with the "supervision” that section 3 — 108 requires. It is undisputed that the District satisfied state public health regulations in terms of the number of lifeguards present and their qualifications. However, Barnett claims that the supervision required by section 3 — 108 "explicitly implies the existence of a requisite degree of competence and active control.” She argues that the supervision provided by the lifeguards was so deficient that it constituted not only willful and wanton misconduct, but also "a complete failure to provide supervision.”

We agree with the appellate court that Barnett "attempts to apply a substantial limitation on the immunity of section 3 — 108(b) where none exists.” 267 Ill. App. 3d at 289. The plain language of section 3 — 108(b) unambiguously does not require any particular level or degree of "supervision.” The legislature omitted from the plain language of section 3 — 108 any reference to the quality of supervision required thereunder. Thus, the legislature must have intended to provide unconditional immunity for liability when supervision is provided. See West, 147 Ill. 2d at 6-7.

Indeed, Barnett’s interpretation of section 3 — 108(b) would effectively nullify it. If section 3 — 108(b) immunized only nonnegligent conduct, then there would be no need for immunity because the conduct would not be actionable in the first place. The fact that the legislature established immunity in section 3 — 108(b) means that otherwise actionable conduct, i.e., inadequate supervision, was to be covered.

Barnett cites Blankenship in support of her argument. In that case, the appellate court held that section 3 — 108(b) did not immunize the defendant park district because the lifeguards at the pool facility were off duty, not physically present at the pool, and not in a position to see the pool. Blankenship, 269 Ill. App. 3d at 418-19, 424. The appelláte court held that "[t]his was not mere inattention or a momentary lack of vigilance; it was a complete absence of supervision.” Blankenship, 269 Ill. App. 3d at 424.

This case is distinguishable from Blankenship. Here, the District provided lifeguards, as state public health regulations prescribe, who were not only physically present, but were actually supervising the deep pool. Thus, section 3 — 108(b) applies and immunizes the District from liability. See Burdinie, 139 Ill. 2d at 513-14.

Lastly, we note that the appellate court in this case and in Payne urged the legislature to articulate what constitutes "supervision” under the Act or to remove willful and wanton misconduct from section 3 — 108(b) immunity. Payne, 268 Ill. App. 3d at 787; Barnett, 267 Ill. App. 3d at 290. We join the appellate court in this request.

After carefully reviewing the entire record, we conclude that the record contains no genuine issues of material fact. Further, given the full immunity provided by the legislature in the unconditional language of section 3 — 108 of the Tort Immunity Act (745 ILCS 10/3— 108 (West 1992)), we conclude that the District is entitled to a judgment as a matter of law.

For the foregoing reasons, the judgment of the appellate court is affirmed.

Affirmed.