Brown v. Chicago Park District

578 N.E.2d 999, 218 Ill. App. 3d 612, 161 Ill. Dec. 353, 1991 Ill. App. LEXIS 1074
CourtAppellate Court of Illinois
DecidedJune 24, 1991
Docket1-89-2162
StatusPublished
Cited by21 cases

This text of 578 N.E.2d 999 (Brown v. Chicago Park District) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Chicago Park District, 578 N.E.2d 999, 218 Ill. App. 3d 612, 161 Ill. Dec. 353, 1991 Ill. App. LEXIS 1074 (Ill. Ct. App. 1991).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff David Brown, the special administrator of the estate of decedent Rochelle Brown, appeals an order of the circuit court of Cook County dismissing his second amended complaint. The complaint asserted claims against defendants Chicago Park District (Park District) and district employees Roosevelt Harris, Cory Swayzer and Charles Christiel, relating to the drowning of decedent in the Madden Park Swimming Pool.

The facts alleged in the second amended complaint áre as follows. In 1988, decedent was 22 years old, but had the equivalent of a third-grade education due to a mental handicap. On August 1, 1988, decedent went to the Madden Park swimming pool with some of her neighbors. The pool, which is located in the City of Chicago, was operated by the Park District. At this time, at least three Park District employees were working at Madden Park; defendants Harris and Swayzer were employed as lifeguards, while defendant Christiel was employed as the Madden Park supervisor. Decedent wore a T-shirt and shorts to the pool; she had never been in a swimming pool or in the water at a beach in her life.

Decedent entered, fell or was pushed into the deep water of the pool, where she sank, remained underwater, breathed water and died of drowning. The defendants did not observe this incident; the lifeguards were allegedly socializing with some girls at this time.

On March 10, 1989, plaintiff filed a complaint against the Park District, Harris and Swayzer. The Park District later filed a motion to dismiss pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). By the time a hearing was held on the motion, plaintiff had filed a second amended complaint which included Christiel as a defendant. Counts I and II of the complaint alleged wrongful death and survival actions based on defendant’s allegedly negligent failure to supervise the pool; counts III and IV alleged wrongful death and survival actions based on defendant’s allegedly willful and wanton misconduct. The trial court granted the Park District’s motion to dismiss the entire complaint with prejudice and without leave to amend, holding that the Park District was immune from liability pursuant to section 3 — 108(b) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act or Act) (Ill. Rev. Stat. 1989, ch. 85, pars. 1— 101 through 9 — 107). The trial court also found that there was no just reason to delay enforcement or appeal of the order, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Initially, we note that the purpose of a section 2 — 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact, (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 501 N.E.2d 156.) A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (See Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654.) In the instant case, therefore, we assume that the well-pleaded facts of plaintiff’s amended complaint are true. A reviewing court may affirm the dismissal of a complaint pursuant to section 2 — 619 on any grounds which are supported by the record, regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303, 305.

In this case, the Park District moved to dismiss plaintiff’s second amended complaint under section 2 — 619(a)(9) of the Code of Civil Procedure, which provides that a defendant may move to dismiss an action on the ground that a claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(9).) “Affirmative matter” includes something in the nature of a defense that completely negates the alleged cause of action.

Before we reach the question of whether the Park District is immune from suit, however, we must first determine whether defendant owed a duty to plaintiff or decedent. “It is fundamental that 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. (1973), 56 Ill. 2d 95, 97, 306 N.E.2d 39, 40; see Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231.) The absence of a legal duty to a plaintiff is affirmative matter which can be asserted by a section 2 — 619 motion. Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 54, 515 N.E.2d 779, 781; Holubek v. City of Chicago (1986), 146 Ill. App. 3d 815, 817, 497 N.E.2d 348, 350.

Although the Illinois Supreme Court abolished the doctrine of sovereign immunity in 1959 (Burdinie, 139 Ill. 2d at 506, 565 N.E.2d at 658), our courts have generally upheld the common law rule that a governmental body exercising its governmental authority for a governmental purpose is generally not liable to a private plaintiff for the allegedly negligent exercise of said authority. (Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 614, 484 N.E.2d 909, 911; Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 369 N.E.2d 917; see Burdinie, 139 Ill. 2d at 507-08, 565 N.E.2d at 658.) In such cases, our courts have distinguished those functions which are governmental in character from those which are not. (Fryman, 137 Ill. App. 3d at 614-15, 484 N.E.2d at 911.) For example, in Gebhardt v. Village of La Grange Park (1933), 354 Ill. 234, 188 N.E. 372, our supreme court held that a municipality was not liable for a tort arising out of its operation of a swimming pool, reasoning that the operation of a pool was a governmental function. (Gebhardt, 354 Ill. at 239-40, 188 N.E.2d at 374-75.) Indeed, the scope of protection afforded by Gebhardt extended to an agent of a municipality who became involved in an automobile accident while transporting children to a municipal pool. Gebhardt, 354 Ill. at 235-36, 188 N.E.2d at 373.

Gebhardt controls our decision in this case. When a municipality acts for the benefit of the general public, it owes no duty to a particular member of the public, unless plaintiff can show that defendant owed a “special duty” to a particular individual. (See Burdinie, 139 Ill.

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Bluebook (online)
578 N.E.2d 999, 218 Ill. App. 3d 612, 161 Ill. Dec. 353, 1991 Ill. App. LEXIS 1074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-chicago-park-district-illappct-1991.