Carolyn Barnett v. Ludwig and Company

¶ 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

matter of law, defendants breached no duty of care to Darius.

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¶ 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

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

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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

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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 (7) 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 admission to the pool

area. The CLT regulations state that they were promulgated "[i]n conjunction” with title 7, 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

1Though 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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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 mid-summer. Lantz did

not know when exactly he did the mid-summer 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.

2Witnesses employed by defendants testified that the minimum age is now 16 years of age.

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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.

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

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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

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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 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.

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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.

¶ 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

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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

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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:

"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)].”

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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 three 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

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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. 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

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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

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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, 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.”

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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) (2010))] 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

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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 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]

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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.” (Emphasis 3 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 drowned, he was still a minor under Illinois law. See 755 ILCS 5/11-1 (West 2010) ("A

3As 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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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

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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

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.

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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

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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 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

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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, 404

4The minimum age of the "responsible person” has since been lowered to 16.

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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 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

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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

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(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 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

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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

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the initial burden to affirmatively show that, notwithstanding the well-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

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lifeguard. The trial court did not err in granting summary judgment for defendants and in denying

summary judgment for plaintiff.



* * *



See: http://www.state.il.us/court/Opinions/AppellateCourt/2011/2ndDistrict/November/2101053.pdf

¶ 53 Affirmed.

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