The opinion
Illinois Official Reports
Appellate Court
Suchy v. City of Geneva, 2014 IL App (2d) 130367
Appellate Court WILLIAM SUCHY, Independent Adm’r of the Estate of Randy
Caption Suchy, Deceased, Plaintiff-Appellant, v. THE CITY OF GENEVA,
THE GENEVA PARK DISTRICT, and THE COUNTY OF KANE,
Defendants-Appellees.
District & No. Second District
Docket No. 2-13-0367
Filed March 28, 2014
Held Defendants, the City of Geneva, the Geneva park district and Kane
(Note: This syllabus County, did not have a duty of care to plaintiff’s brother, who died
constitutes no part of the after jumping below a dam into a river to save a drowning boy,
opinion of the court but because while the risks presented by a body of water are generally
has been prepared by the considered to be open and obvious and thus an exception to a general
Reporter of Decisions duty of care owed by a landowner in Illinois, the court applied the
for the convenience of traditional duty analysis and found that the defendants were not
the reader.) negligent, since they neither created, altered, nor owned the dam,
plaintiff did not allege that the danger was concealed below the water,
and there already were warning signs in place.
Decision Under Appeal from the Circuit Court of Kane County, No. 12-L-284; the
Review Hon. Edward C. Schreiber, Judge, presiding.
Judgment Affirmed.
Counsel on David C. Wise, of Burke Wise Morrissey & Kaveny, of Chicago, for
Appeal appellant.
Amanda M. Hillmann, of Knight, Hoppe, Kurnik & Knight, Ltd., of
Rosemont, for appellee City of Geneva.
Edward F. Dutton, of Park District Risk Management Agency, of
Lisle, for appellee Geneva Park District.
Joseph H. McMahon, State’s Attorney, of St. Charles (Joseph F.
Lulves, Assistant State’s Attorney, of counsel), for appellee County of
Kane.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Zenoff and Birkett concurred in the judgment and opinion.
OPINION
¶1 In 2011, decedent, Randy Suchy, died after he jumped into the Fox River in Geneva to save
a drowning boy. Subsequently, plaintiff, William Suchy, as the independent administrator of
decedent’s estate, brought a personal injury/wrongful death action against defendants, the City
of Geneva (City), the Geneva park district (Park District), and the County of Kane (County).
The trial court dismissed plaintiff’s complaint with prejudice, finding that: (1) the hidden
danger from the aerated water in the river was an open and obvious danger; and (2) the
municipalities were immune from liability pursuant to section 3-110 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
ILCS 10/3-110 (West 2012)). Plaintiff appeals, arguing that: (1) the trial court failed to
undertake a traditional duty analysis to determine whether defendants owed a duty; (2) the
deliberate-encounter exception to the open-and-obvious doctrine applies and raises a factual
question precluding dismissal; and (3) section 3-110 of the Tort Immunity Act does not
immunize defendants from liability, where the Park District exercises control of the river and
the site of decedent’s death, the City has statutory jurisdiction over the river as well as the right
to deny access, and plaintiff properly alleged that the County controlled the river. We affirm.
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¶2 I. BACKGROUND
¶3 A. Plaintiff’s Complaint
¶4 In his seven-count complaint, filed in 2012, plaintiff alleged as follows. For many years
prior to August 5, 2011, in the Fox River, there was a low head dam commonly known as the
Geneva Dam. The dam created extremely dangerous and potentially deadly currents in the
water downstream, and defendants knew this and knew that many people are injured each year
by drowning or nearly drowning at the downstream side of dams such as the Geneva Dam.
Defendants knew that it was unsafe and potentially lethal for children or adults to be in the
dam’s downstream water, and they knew that the water and the land in close proximity to it
could not be safely used. Defendants also knew that children and adults were unaware of the
dangers of low head dams. Defendants purposefully and intentionally configured their land to
cause children and adults to use the land in close proximity to the downstream water.
Defendants had been repeatedly told that the access they provided to the downstream side of
the dam was dangerous, but they persisted in causing access to the land in close proximity to
the downstream side of the dam. Defendants had also been told that warning signs were
inadequate to apprise children and adults of the dangers of using the land, and they refused to
repair the signs or install new ones.
¶5 On August 5, 2011, Evan Schultz, age 12, was using the land in close proximity to the
downstream side of the dam. Decedent saw Schultz drowning at the downstream side and
jumped into the water to save the boy’s life. He saved Schultz’s life, but sustained injuries that
resulted in his death. Plaintiff also pleaded that Schultz and decedent were intended and
permitted users of defendants’ property.
¶6 In his wrongful death counts (740 ILCS 180/1 et seq. (West 2012)) (counts I, III, and V),
plaintiff alleged that defendants supervised, maintained, operated, managed, and controlled the
river in one or more of the following ways: (1) the City exercised its rights to grant or deny
access to third parties who wished to use the river, declared various activities unlawful
(swimming, walking, standing, fishing, boating, or being in the river in certain locations and
within a certain distance from the dam 1), and had the power to participate in and object to
modifications of the dam or its removal; (2) the Park District declared its control over all
bodies of water located in or adjoining a park (and the river adjoins Old Mill Park, Bennett
Park, and Island Park); exercised its rights to grant or deny access to third parties who might
use the river; declared its authority to allow swimming, wading, and bathing only in
accordance with its rules, regulations, and restrictions; declared various activities (swimming,
wading, standing, and bathing) unlawful, except as designated by the Park District board and in
accordance with its rules, regulations, and restrictions promulgated and posted; and declared
that it had the power to grant or prohibit fishing in the river; and (3) the County had the power
to take water from the river; participated in decisions as to how to modify or remove dams in
the river; exercised its powers of protecting and managing the water quality and level therein;
protected and managed the river for its beneficial use; protected and preserved water supplies
for current and future generations; exercised its powers of preserving and improving the river
1
City Ordinance section 6-2-6 provides: “It shall be unlawful for any person to swim, walk, stand,
fish, boat or otherwise be located within the waters of the Fox River and within fifty feet (50’) on either
side of the dam located immediately north of the State Route 38 bridge (State Street Bridge).” Geneva
Code of Ordinances, ch. 2, § 6-2-6(C) (2003).
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to maximize its potential for wildlife, recreation, and other uses; and had the power to
participate in and object to modifications of the dam or its removal.
¶7 Plaintiff further alleged that defendants acted willfully and wantonly and with a conscious
indifference and utter disregard for the safety of others in one or more of the following ways:
(1) persisting in causing and encouraging children and adults to use the land in close proximity
to the downstream side of the low head dam when they knew that it was unsafe to do so; (2)
refusing to close off access to the downstream side of the low head dam when they knew that
closing off such access was reasonably necessary for safety and to prevent children and adults
from being killed; (3) refusing to repair or maintain signs warning children and adults of the
deadly dangers of the land in close proximity to the downstream side of the low head dam and
warning all persons to stay out of the water in close proximity to the downstream side of the
dam 2; (4) failing to maintain adequate or reasonable fencing to prevent persons from entering
the water in close proximity to the downstream side of the dam; and (5) failing to maintain
adequate lifesaving devices in the area of danger at the dam.
¶8 According to plaintiff, as a proximate result of one or more of these willful and wanton acts
and omissions, committed with conscious indifference and utter disregard for the safety of
others, decedent suffered injuries that resulted in his death. He left surviving him brothers and
sisters, all of whom sustained a loss of love, society, and companionship.
¶9 In his survival action counts (755 ILCS 5/27-6 (West 2012)) (counts II, IV, and VI),
plaintiff realleged the allegations in his wrongful death counts and further asserted that
decedent sustained personal injuries resulting in his death, including conscious pain and
suffering, which would have entitled him to bring a cause of action and that this cause survived
him. 3
¶ 10 As to the County, plaintiff additionally alleged (in counts V and VI) that the municipality
was responsible for planning and managing groundwater, surface water, potable water
supplies, rivers, streams, floodplains, and wetlands. The County submitted a report to the state,
describing various dam-related deaths and injuries. It further developed a countywide water
protection plan for preserving and improving water quality in the river in order to maximize
recreational use of the river. Plaintiff further alleged that the County disbursed to its citizens
potable water from the river through public water supply systems. The County undertook
restoration, construction, and improvement projects on the river, including, but not limited to,
installation of tools to hold the toe of the sloop to minimize erosion and restoration of dams
that cause stream erosion. The County further removed or planned for removal of several dams
located on the river, including the North Batavia Dam, the South Batavia Dam, and the
Brewster Creek Dam.
2
In subsequent pleadings, plaintiff attached state-generated reports and photographs that reflected
that there was posted signage adjacent to the river at the dam area, warning of hazardous currents and
prohibiting swimming (“Warning, Hazardous Currents Present, Do Not Enter Spillway Area” and
“Danger, Swift Water, Keep Away from Dam”).
3
In count VII, entitled “Respondents in Discovery,” plaintiff further alleged that defendants “may
have information essential to the determination of who should properly be named as an additional
defendant in this action,” and plaintiff added any future respondents in discovery pursuant to section
2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 2012)).
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¶ 11 B. Defendants’ Motions
¶ 12 Defendants moved to dismiss plaintiff’s complaint. The Park District, on October 4, 2012,
brought a combined motion under section 2-619.1 of the Code of Civil Procedure (Code) (735
ILCS 5/2-619.1 (West 2012)). Pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West
2012) (pleading insufficient in law)), the Park District argued that: (1) it owed no legal duty to
warn of or protect against the risks presented by the river, as such risks are considered open and
obvious as a matter of law to any person old enough to be allowed at large; (2) it owed no legal
duty to inspect, repair, warn of, or protect against any allegedly unsafe conditions of the river
and/or dam, as plaintiff did not adequately allege that the Park District owned or controlled
either the river or the dam; and (3) pursuant to section 3-102(a) of the Tort Immunity Act (745
ILCS 10/3-102(a) (West 2012) (“a local public entity has the duty to exercise ordinary care to
maintain its property in a reasonably safe condition for the use in the exercise of ordinary care
of people whom the entity intended and permitted to use the property in a manner in which and
at such times as it was reasonably foreseeable that it would be used, and shall not be liable for
injury unless it is proven that it has actual or constructive notice of the existence of such a
condition”)), it owed no duty of care to decedent, where, based upon plaintiff’s allegations,
decedent was an unintended user of the river because the Park District had declared it unlawful
to enter the water for any reason.
¶ 13 Pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2012) (claim
“barred by other affirmative matter avoiding the legal effect of or defeating the claim”)), it
argued that: (1) section 5 of the Rivers, Lakes, and Streams Act (615 ILCS 5/5 (West 2012))
confirmed that the Illinois Department of Natural Resources had exclusive jurisdiction and
supervision over the river and that the Park District merely possessed land adjacent to the river
and/or dam, but did not own or control the river or dam; (2) even if plaintiff’s allegations were
sufficient to state a viable claim, the Park District, as a mere possessor of adjacent land, was
immune from liability pursuant to: (a) section 3-110 of the Tort Immunity Act (745 ILCS
10/3-110 (West 2012) (“Neither a local public entity nor a public employee is liable for any
injury occurring on, in, or adjacent to any waterway, lake, pond, river or stream not owned,
supervised, maintained, operated, managed or controlled by the local public entity.”)) and (b)
section 2-105 of the Tort Immunity Act (745 ILCS 10/2-105 (West 2012) (“A local public
entity is not liable for injury caused by its failure to make an inspection, or by reason of making
an inadequate or negligent inspection, of any property, other than its own, to determine
whether the property complies with or violates any enactment or contains or constitutes a
hazard to health or safety.”)). The Park District requested that the court dismiss the counts
directed against it (counts III and IV) with prejudice and sought a finding under Illinois
Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
¶ 14 On October 9, 2012, the City brought a combined motion to dismiss plaintiff’s complaint
pursuant to section 2-619.1 of the Code. (Subsequently, the County was allowed to join the
City’s motion.) As to section 2-619 of the Code, it argued that: (1) it was immune from liability
pursuant to section 3-110 of the Tort Immunity Act, where plaintiff did not allege that the City
owned, supervised, maintained, operated, or controlled the river or dam, and where either (a)
the federal government has exclusive dominion over the river, which is a federal navigable
waterway, (b) the state has exclusive jurisdiction over the river, or (c) the City does not own
the land adjacent to the river; and (2) pursuant to section 3-102(a) of the Tort Immunity Act,
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the City had no duty to warn or protect plaintiff against any risks presented by the river,
because decedent was not an intended or permitted user where the City, as plaintiff alleged,
declared it unlawful to enter the river. The City argued pursuant to section 2-615 of the Code
that it had no duty to warn decedent or to protect him against any risks presented by the river,
because, as a matter of law, such risks are considered open and obvious to any adult.
¶ 15 C. Trial Court’s Ruling
¶ 16 On March 21, 2013, the trial court granted defendants’ motions and dismissed plaintiff’s
complaint with prejudice. 4 It found that defendants had no control over the river or dam,
because the river and dam are owned by the state and maintained and controlled by the
Department of Natural Resources. The court further found that, assuming that they were aware
of the dangers presented by the river and dam and that they nevertheless encouraged the public
to engage in recreational activities in the vicinity of the dam, defendants had no duty to warn or
otherwise protect decedent against the open and obvious risks presented. Accordingly, the
court granted defendants’ section 2-615 motions to dismiss.
¶ 17 The court noted that, based on its no-duty finding, it did not need to reach the issue (in
defendants’ section 2-619 motions) of whether an immunity provision applied. However, it
nevertheless addressed one of the alternative arguments. The court found that, pursuant to
section 3-110 of the Tort Immunity Act and relevant case law, defendants’ restriction or
control of certain activities on, in, or near the river and dam did not constitute control or
supervision of the waterway itself, which is owned and controlled by the state. Accordingly,
the court granted defendants’ section 2-619 motions to dismiss. Plaintiff appeals.
¶ 18 II. ANALYSIS
¶ 19 A motion to dismiss a complaint pursuant to section 2-615 of the Code challenges the legal
sufficiency of a complaint by alleging that it fails to state a claim on which relief can be
granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). A section 2-615 dismissal is
proper where it is apparent that the plaintiff cannot prove any set of facts entitling him or her to
relief. Seip v. Rogers Raw Materials Fund, L.P., 408 Ill. App. 3d 434, 438 (2011). The test is
whether the allegations in the complaint, when viewed in a light most favorable to the plaintiff,
are sufficient to state a cause of action upon which relief can be granted. Canel v. Topinka, 212
Ill. 2d 311, 317 (2004). When we review a motion filed pursuant to section 2-615, we accept all
well-pleaded facts as true, as well as all reasonable inferences that arise from them. Patrick
Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. However, we will disregard all
legal and factual conclusions that are not supported by specific factual allegations. Id. We
review de novo a trial court’s decision on a motion to dismiss pursuant to section 2-615. Id.
The existence of a duty presents a legal question also subject to de novo review. Mitchell v.
City of Chicago, 221 Ill. App. 3d 1017, 1020 (1991). Finally, we note that we review the trial
court’s judgment, not its reasoning, and we may affirm on any grounds in the record,
regardless of whether the trial court relied on those grounds or whether the trial court’s
reasoning was correct. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97 (1995).
4
It further terminated the Forest Preserve District of Kane County as a respondent in discovery.
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¶ 20 To prevail on a common-law negligence claim, a plaintiff must establish that the defendant
owed a duty, that the defendant breached that duty, and that the defendant’s breach was the
proximate cause of injury to the plaintiff. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215,
225 (2010). Unless a duty is owed, there can be no recovery for negligence. American National
Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 26 (1992).
¶ 21 Plaintiff argues that the trial court erred in dismissing his complaint, where the court failed
to undertake a traditional duty analysis to assess whether defendants owed decedent a duty.
Had it undertaken such an analysis, plaintiff asserts, the court would have determined either
that the “subsurface,” man-made, aerated currents under the boil were not open and obvious,
and, thus, defendants owed decedent a duty to warn or protect against the dangers, or that, at a
minimum, their obviousness and the applicability of the deliberate-encounter exception were
factual questions precluding dismissal under section 2-615 of the Code. Defendants 5 respond
that they owed decedent no duty to warn of or protect against any risks presented by the river,
because such risks are considered to be open and obvious to any adult (and even subjectively
were, as decedent observed the risk of drowning firsthand, yet voluntarily and intentionally
disregarded it by jumping into the water). The court found that defendants had no control over
the river or dam, because the river and dam are owned by the state and maintained and
controlled by the Department of Natural Resources. The court further found that, assuming that
they were aware of the dangers presented by the river and dam and that they nevertheless
encouraged the public to engage in recreational activities in the vicinity of the dam, defendants
had no duty to warn or otherwise protect decedent against the open and obvious risks
presented. For the following reasons, we conclude that, assuming, without deciding, that
plaintiff adequately pleaded that any defendant had any control over the water and/or dam, the
trial court did not err in finding that defendants owed decedent no duty.
¶ 22 “Duty is determined by asking ‘whether defendant and plaintiff stood in such a relationship
to one another that the law imposed upon defendant an obligation of reasonable conduct for the
benefit of plaintiff.’ ” Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445 (1996)
(quoting Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990)). Persons who own, occupy, or
control and maintain land are not ordinarily required to foresee and protect against injuries
resulting from dangerous conditions that are open and obvious. Id. at 447-48; Alqadhi v.
Standard Parking, Inc., 405 Ill. App. 3d 14, 17 (2010) (quoting Restatement (Second) of Torts
§ 343A(1) (1965)); see also Bezanis v. Fox Waterway Agency, 2012 IL App (2d) 100948, ¶ 15
(open-and-obvious doctrine is an exception to general duty of care owed by a landowner in
Illinois). The law assumes that persons will recognize the danger and take care to avoid the
risk. Id. ¶ 16. “A condition is open and obvious where a reasonable person in the plaintiff’s
position, exercising ordinary perception, intelligence, and judgment, would recognize both the
condition and the risk involved.” Id. Open and obvious dangers include fire, height, and bodies
of water. Bucheleres, 171 Ill. 2d at 447-48; see Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 118 (1995) (holding that the defendant could
reasonably expect that a six-year-old child would appreciate the risk represented by a
swimming pool and, therefore, owed no duty arising out of the defendant’s placement of a
utility pedestal next to fence around pool). The determination of whether a danger is open and
5
The City and Park District each filed briefs with this court. On October 11, 2013, we granted the
County’s motion to join and adopt their briefs as and for its brief.
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obvious is generally a question of fact, though it can be decided as a matter of law where
reasonable minds could not disagree and based upon the objective knowledge of a reasonable
person confronting the same condition. Sandoval v. City of Chicago, 357 Ill. App. 3d 1023,
1027-28 (2005); Harmon v. United States, 8 F. Supp. 2d 757, 761 (N.D. Ill. 1998); see also
Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 34 (“Where there is no dispute
about the physical nature of the condition, whether a danger is open and obvious is a question
of law.”).
¶ 23 Again, bodies of water are deemed to present open and obvious dangers, whether they are
natural or man-made. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 425 (1998). Further,
water’s dangers are considered to be apparent to both experienced swimmers and young
children. Id. at 425-26. “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.” Id. at 426. For the open-and-obvious
doctrine to apply, the condition, by its nature, must carry its own warning of potential harm. Id.
Where it does not, the doctrine is not necessarily dispositive. Id. at 426-27 (reversing summary
judgment for the defendant and holding that a patron of a commercial bathing beach could not
have reasonably anticipated the presence of an underwater obstruction–a two-inch diameter,
black plastic pipe used to adjust the water level–or the injuries it could produce, where the lake
was intended to be used solely for recreational swimming and the defendant’s personnel
periodically moved the submerged pipe, which made it impossible for patrons to assess the risk
of diving).
¶ 24 The mere existence of an open and obvious danger is not a per se bar to finding that a
defendant who owns, occupies, or controls land has a duty to exercise reasonable care.
Jackson, 185 Ill. 2d at 425; Bucheleres, 171 Ill. 2d at 449. In assessing whether a duty is owed,
a court must still apply a traditional duty analysis to the particular facts of the case. Jackson,
185 Ill. 2d at 425. Relevant factors as to whether a duty exists include: (1) the likelihood of
injury; (2) the reasonable foreseeability of such injury; (3) the magnitude of guarding against
the injury; and (4) the consequences of placing that burden on the defendant. Id. “Nonetheless,
for all practical purposes, *** if a danger is open and obvious, and neither exception applies,
there is no duty.” Allen ex rel. Linder v. Martinez, 348 Ill. App. 3d 310, 314 (2004). Thus,
whether a duty exists to guard against harm from an open and obvious condition depends on
whether an exception applies. Sollami v. Eaton, 201 Ill. 2d 1, 15-16 (2002). One exception is
the deliberate-encounter exception, which provides that “harm may be reasonably anticipated
when the landowner ‘has reason to expect that the invitee will proceed to encounter the known
or obvious danger because to a reasonable man in his position the advantages of doing so
would outweigh the apparent risk.’ ” Rusch v. Leonard, 399 Ill. App. 3d 1026, 1036 (2010)
(quoting Restatement (Second) of Torts § 343A cmt. f (1965)). The deliberate-encounter
exception most often applies in cases involving economic compulsion or impetus. Sollami, 201
Ill. 2d at 16 (citing cases). The deliberate-encounter exception affects the foreseeability
analysis–the second factor in the traditional duty analysis. See LaFever v. Kemlite Co., 185 Ill.
2d 380, 396 (1998) (“finding that a landowner may reasonably be expected in certain instances
to predict that an invitee may suffer harm from an open and obvious danger is conclusive only
of the possessor’s duty, and then only partially so, since foreseeability alone is not
determinative of duty”); see also Rusch v. Leonard, 399 Ill. App. 3d 1026, 1028, 1036 (2010)
(reversing summary judgment for the defendant construction company and holding that
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exception applied where there was only one stairway to access the second floor of building and
thus it was reasonable to expect an invitee/firemedic to encounter the known or obvious
danger–carrying injured person down stairway and landings that did not have a handrail and
were unsecured).
¶ 25 Before assessing the relevant factors, we review the case law upon which the parties rely.
Plaintiff relies on Ward v. Mid-American Energy Co., 313 Ill. App. 3d 258 (2000). In Ward,
two teenage boys drowned after they entered a slough adjacent to the Mississippi River and
below a dam owned and operated by the defendant. The boys had entered the water to retrieve
a ball and were swept up by the currents. The plaintiffs alleged that the defendant was aware of
the danger in the water, had created the dangerous currents, which were not apparent from the
surface, and knew that the danger was not apparent. The plaintiffs also asserted that the
defendant failed to place or maintain warning signs about the dangerous underwater currents.
The trial court dismissed the plaintiffs’ complaint, pursuant to section 2-615 of the Code, on
the basis that the dangers presented by a body of water are open and obvious.
¶ 26 The reviewing court reversed and remanded, holding that the defendant owed a duty to
warn. Id. at 262-63. The court noted that “the existence of an open and obvious danger is not a
per se bar to finding that a landowner has a duty to exercise reasonable care.” Id. at 260-61.
Further, it noted that, in determining whether a duty exists, a court must still undertake a
traditional duty analysis. Id. at 261. In assessing the first factor, the likelihood of injury, the
court noted that it is generally slight when the condition is open and obvious, because “it is
assumed that persons encountering the dangerous condition will appreciate and avoid the risk.”
Id. (further noting that obvious dangers associated with water include “strong currents,
submerged obstacles, sudden drop-offs, etc.”). However, in the case before it, the plaintiffs had
alleged that the presence of the powerful underwater man-made currents was not apparent
from the surface and that the danger was not open and obvious. Id. Thus, although the dangers
associated with water were obvious, the likelihood of injury was at least moderate due to the
increased risks caused by the hidden currents. Id. In addressing the second factor, the
reasonable foreseeability of injury, the court noted that, generally, as the obviousness of the
danger increases, the foreseeability of injury decreases, because people are expected to
exercise due care and avoid obvious risks. Id. However, in that case, the foreseeability of injury
was very high because, according to the complaint, the defendant knew of the currents, that the
danger was not apparent, and of six previous drownings. Id. at 261-62. As to the third factor,
the magnitude of the burden of guarding against injury, and the fourth factor, the consequences
of placing that burden on the defendant, the court concluded that they were small (i.e., warning
signs). Id. at 262. Accordingly, the court held that the defendant owed a duty to warn the
plaintiffs’ decedents of the dangerous underwater currents allegedly produced by the
defendant’s dam. Id.
¶ 27 The Ward court further stated that Lerma v. Rockford Blacktop Construction Co., 247 Ill.
App. 3d 567 (1993), which held that no duty existed under similar facts, was overruled by
Jackson to the extent that it held that no duty could ever exist when the injury involves a body
of water. Ward, 313 Ill. App. 3d at 262. In Lerma, which defendants urge is controlling here
and which plaintiff argues is flawed for failing to conduct the traditional duty analysis, 6 two
6
But see Sollami, 201 Ill. 2d at 15, 17 (holding that the “open and obvious” doctrine implicates only
the first two factors of the traditional duty analysis: likelihood and reasonable foreseeability of injury).
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children entered a river near a dam and drowned downstream of the dam while attempting to
rescue another child who had been playing in the river. The plaintiffs alleged that unseen
hazards in the river, in the form of undercurrents, debris, or both, caused the decedents’ deaths.
They further alleged that operation of the dam’s conduits altered the natural flow of the river,
thereby creating dangerous undercurrents and undertows that were not visible from the surface
and were capable of causing drowning. The defendant general contractor had opened the
conduits to prevent water from flowing over the top of the dam. The plaintiffs alleged that the
entire flow of the water was forced downstream through the conduits. They also asserted that
the river’s bottom was cluttered with debris from the construction project, the debris was not
visible from the surface, and a person could become entangled in it and drown. Initially, the
Lerma court generally noted that an entity in control of the premises, such as the defendant
general contractor in that case, has a duty to keep its site safe and to be informed of its safety,
but that the nature of the danger is dispositive and, in the case of open and obvious dangers, no
duty exists. Lerma, 247 Ill. App. 3d at 573. According to the court, “it is a body of water per se
that presents an obvious risk of drowning, not its attendant conditions, whether surface or
subsurface, artificial or natural.” Id. at 575. Bodies of water, the court further stated, are
obvious dangers “to persons old enough to be at large precisely because of their unknown
surface or subsurface elements.” (Emphasis added.) Id. The test is the foreseeability of harm.
Id. Affirming the section 2-615 dismissal of the plaintiffs’ complaint, the court held that the
open and obvious nature of the danger made the injuries unforeseeable and, thus, as to the
defendant general contractor, no duty existed to warn of the dangers or to prohibit entry in the
dam’s vicinity. Id. at 573.
¶ 28 Relying on Jackson’s statement that, where a hazard is not related to the inherent
characteristics of bodies of water and stems solely from the defendant’s conduct, the “open and
obvious” doctrine does not apply and a duty is owed (Jackson, 185 Ill. 2d at 426), the Ward
court concluded that the defendant owed the plaintiffs’ decedents a duty to warn of the
dangerous underwater currents allegedly produced by the defendant’s dam. Ward, 313 Ill.
App. 3d at 263. Ward read Jackson to stand for the proposition that “liability may attach for
injuries caused by hazards in bodies of water where the hazard: (1) could not be detected; (2)
was not an ‘inherent characteristic’ of bodies of water; and (3) stemmed solely from the
defendant’s conduct.” Id. Because the Ward plaintiffs alleged that the currents were not
apparent from the surface and were man-made (by the defendant), their cause of action was not
barred merely because the danger the defendant had created can also occur naturally. Id.
(further noting that, on remand, the plaintiffs would still bear the burden of establishing that the
defendant’s conduct was the proximate cause of the boys’ deaths); cf. Bezanis, 2012 IL App
(2d) 100948, ¶¶ 24-30 (undertaking traditional duty analysis and upholding trial court’s refusal
to impose duty to warn of diving into shallow water far from shore, where, unlike Jackson,
case did not involve a danger that the defendant created, but, instead, involved a danger
inherent in a body of water–the risk of diving into shallow water).
¶ 29 Here, plaintiff argues that the “subsurface,” man-made aerated currents “under” the boil
were not open and obvious (and, thus, defendants owed decedent a duty) or, at a minimum,
presented a factual question (given that they were man-made and hidden). Addressing the
likelihood of injury, plaintiff argues that the trial court should have found that this factor–the
likelihood of injury from dangerous currents “beneath” the surface and caused by the
man-made dam–was at least moderate. As to the reasonable foreseeability factor, plaintiff
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argues that he pleaded that defendants knew of the dangers, that they caused, invited, and
encouraged people to use the water, and that they knew that the dangers were not known to
users. The magnitude of the burden of guarding against it, plaintiff argues, is small, requiring
only proper signs and warnings.
¶ 30 Defendants respond that the risk at issue here is the risk of drowning. They argue that a
property owner owes no legal duty to warn of or protect against the open and obvious risk of
drowning in a body of water. They contend that Ward is distinguishable. There, the defendant
allegedly owned the dam that created the underwater currents. Defendants argue that, here,
plaintiff did not and cannot direct such allegations against them. They further assert that in
both Ward and Jackson the defendants owned the bodies of water as well as the
instrumentalities that created the allegedly dangerous conditions within those bodies of water.
In Ward, the defendant owned the slough and the dam in the area where the decedents
drowned. In Jackson, the defendant owned the commercial public bathing beach, as well as the
submerged plastic pipe that the plaintiff collided with and claimed was an invisible, subsurface
danger. Defendants contend that the risk in Jackson was not the risk of drowning but the
danger of colliding with a hidden, submerged object and that, for this reason, the supreme court
rejected the open-and-obvious defense. Jackson, 185 Ill. 2d at 426; cf. Bezanis, 2012 IL App
(2d) 100948, ¶ 24 (risk was of diving into shallow water, which is an inherent characteristic of
water; danger was not one that stemmed from the defendant’s conduct).
¶ 31 As to the foregoing case law, we agree with defendants that this case is more like Lerma
than Ward (again, assuming, without deciding, that defendants exercised any control over the
river and/or dam). Here, decedent, like the decedents in Lerma, drowned downstream from a
dam while attempting to rescue a child. The Lerma plaintiffs had alleged that unseen hazards in
the river (undercurrents and/or debris) caused the deaths and that the defendant contractor,
which controlled the premises, had caused the undercurrents. In affirming the section 2-615
dismissal of the plaintiffs’ complaint, the Lerma court concluded that the open and obvious
nature of the danger made the injuries unforeseeable and that the defendant contractor owed no
duty to warn or prohibit entry. Lerma, 247 Ill. App. 3d at 573. We disagree with plaintiff (and
Ward) that Lerma held that there is never a duty owed when the injury involves a body of
water. Ward, 313 Ill. App. 3d at 262. The Lerma court did not explicitly state as such and noted
that the foreseeability of injury is the proper focus. Further, the facts in Lerma involved
dangers that are inherent in bodies of water and, thus, there was no need for the court to address
other potential scenarios.
¶ 32 In Ward, in assessing the first factor, the likelihood of injury, the court determined that it
was at least moderate because the currents were hidden. Id. at 261. In assessing the second
factor, the court concluded that it was very high because, according to the complaint, the
defendant knew of the dangerous condition and that it was not apparent and further knew of six
previous drownings. Id. at 261-62. Finally, the third and fourth factors, which assessed the
burden on the defendant, were small (i.e., warning signs). Id. at 262. We believe that Ward is
distinguishable because the defendant in that case allegedly created the dangerous underwater
currents and owned the dam. Neither one of these allegations has been directed against
defendants in this case. Indeed, the Ward court noted that “liability may attach for injuries
caused by hazards in bodies of water where the hazard: (1) could not be detected; (2) was not
an ‘inherent characteristic’ of bodies of water; and (3) stemmed solely from the defendant’s
conduct.” Id. at 263. Even assuming, without deciding, that defendants here exercised some
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control over the river and/or dam, plaintiff has not alleged that the currents in the river were
created by any defendant. Thus, the pleadings here fail the test in the case that plaintiff urges
controls.
¶ 33 We agree with defendants that plaintiff failed to adequately plead that the danger here was
anything other than open and obvious. However, as noted, the existence of an open and
obvious danger is not a per se bar to finding that a landowner has a duty to exercise care.
Jackson, 185 Ill. 2d at 425-26. We must still apply the traditional duty analysis. Id. at 425;
Bezanis, 2012 IL App (2d) 100948, ¶ 26. Turning to the first factor in that analysis–the
likelihood of injury–generally this is slight where a condition is open and obvious, because it is
assumed that persons encountering the danger will appreciate and avoid the risk. Bucheleres,
171 Ill. 2d at 456. However, where a danger is concealed or latent, the likelihood of injury
increases because persons will not be readily aware of such danger. Id. Here, as noted, the
water and dam (including water rushing over the dam) are open and obvious conditions and,
thus, the likelihood of injury is low. Plaintiff pleaded that the dam “created extremely
dangerous and potentially deadly currents in the water at the downstream side of the dam.”
Elsewhere, he referred to the “dangers of low head dams” and pleaded that children and adults
did not know of the dangers of low head dams and that the water and the land near the water
could not be used safely. However, nowhere in his second amended complaint did he plead that
the dangers were not apparent from the surface or were concealed or latent. See Swett v.
Village of Algonquin, 169 Ill. App. 3d 78, 82 (1988) (in assessing a dismissal under section
2-615 of the Code, “[f]acts which are not well pleaded will not be considered by the court
[citation], and conclusions of law or fact unsupported by specific facts in the record are not
deemed to be admitted as true”). Other than in a subsequent filing, 7 plaintiff raises for the first
time on appeal the “fact” that the danger was hidden. In contrast, in Ward, upon which plaintiff
relies, the plaintiffs did allege that the dangerous currents in the water were not apparent from
the surface, and the reviewing court relied on this assertion in concluding that the
foreseeability of injury was “very high.” Ward, 313 Ill. App. 3d at 260-62. Even if he had so
pleaded, we conclude, as noted above, that this case is more like Lerma than Ward and that this
factor weighs against finding a duty. Significantly, the dangerous undercurrents in Ward were,
again, created by the defendant contractor when it opened the conduits to prevent water from
flowing over the dam. Here, there is no such allegation and, as further reflected in photographs
plaintiff submitted with his pleadings, water flowed over the dam. In the absence of any
alterations by defendants, the risks presented by the dam and river here were nothing other than
risks inherent in bodies of water and dams (i.e., drowning and diving into shallow water). The
likelihood of injury was, therefore, slight because the dangers were open and obvious.
Bucheleres, 171 Ill. 2d at 456.
¶ 34 The second factor–the foreseeability of harm to others–depends on the degree of
obviousness of the risks. The test is an objective one: what the possessor may reasonably
expect of the plaintiff. Id. at 456-57. Further, pursuant to LaFever, we also address the
deliberate-encounter exception in assessing this factor. LaFever, 185 Ill. 2d at 396. Finally, the
supreme court has noted that “simple foreseeability of injury is not, and has never been,
dispositive on the issue of whether the law imposes a duty in negligence.” Bucheleres, 171 Ill.
7
Only in his response to defendants’ motions to dismiss did plaintiff refer below to the currents
created by the dam as being “underwater.”
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2d at 457. We conclude that the foreseeability of harm to others is low here. Defendants could
not have reasonably expected decedent to jump into the water near the dam, which presented
the risks of drowning and diving into shallow water, which are “inherent characteristic[s] of
bodies of water and *** danger[s] that defendants did not create.” Bezanis, 2012 IL App (2d)
100948, ¶ 24. Furthermore, although “it is always foreseeable that someone may attempt to
rescue a person who has been placed in a dangerous position” (Williams v. Foster, 281 Ill. App.
3d 203, 207 (1996) (addressing the rescue doctrine and further noting that the rescuer might
incur injuries in doing so and, if the defendant is negligent toward the rescuee, he or she is also
negligent toward the rescuer)), there is generally no legal duty to rescue (see, e.g., Simpkins v.
CSX Transportation, Inc., 2012 IL 110662, ¶ 19 (individuals do not owe an affirmative duty to
protect or rescue a stranger)) and, thus, no legal compulsion. (And there was clearly no
economic compulsion here.) Thus, the deliberate-encounter exception, which, again, requires
the presence of compulsion or impetus (Sollami, 201 Ill. 2d at 16-17), does not apply. In sum,
we disagree with plaintiff that it is highly (or even moderately) foreseeable that a reasonable
person in decedent’s position would conclude that the advantages of jumping into the water,
despite its open and obvious inherent dangers, to save another person’s life would outweigh the
risk of drowning himself (or sustaining injuries that subsequently took his life), where there
was no compulsion to do so.
¶ 35 As to the third factor–the magnitude of the burden of imposing the duty–and the fourth
factor–the consequences of such burden–it has been held that the cost of fencing off a seawall
or enforcing a diving prohibition with increased personnel and warnings was too considerable
a burden, where a park district was aware that some beach patrons congregated near the ledges
and dived therefrom. Bucheleres, 171 Ill. 2d at 457-58. The supreme court further held that the
consequences of placing any such burden on a park district might include restrictions on public
access to the lakefront and beaches, to the public’s detriment. Id. at 458; cf. Ward, 313 Ill. App.
3d at 260, 262 (magnitude and consequences small, where the plaintiffs alleged that the
defendant failed “to place or maintain warning signs regarding the dangerous underwater
currents”). Here, plaintiff alleged that the City purposefully and intentionally configured its
land to cause children and adults to use the land in close proximity to the water on the
downstream side of the dam, knew that the warning signs were inadequate to apprise children
and adults of the dangers of using that land and water, and refused to repair its signs or install
new ones. Plaintiff also alleged that the City refused to close off access to the downstream side,
failed to maintain adequate fencing to prevent persons from entering the water in close
proximity to the downstream side, and failed to maintain adequate lifesaving devices or call
boxes in the area of danger at the dam. We conclude that the final two factors weigh somewhat
against imposing a duty on defendants. As plaintiff concedes, there are currently warning signs
in place, although they are, according to plaintiff, inadequate. Although signs alone constitute
only a small burden (Ward, 313 Ill. App. 3d at 262), the installation of fences and other
measures, as noted in Bucheleres, constitutes a considerably more significant burden.
¶ 36 Therefore, we conclude, based on our consideration of the aforementioned factors, that the
trial court did not err in finding that defendants owed decedent no duty. Assuming that all of
plaintiff’s well-pleaded facts are true, his complaint failed to state a cause of action for
negligence because he failed to allege facts to establish that defendants owed decedent a duty
to warn of or protect against the risks presented by the river and dam.
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¶ 37 Although the parties also address in their briefs several provisions of the Tort Immunity
Act, we do not reach the issues, because we conclude that defendants owed decedent no duty.
The existence of a duty and the application of immunity are separate issues. Romine v. Village
of Irving, 336 Ill. App. 3d 624, 627 (2003). The Tort Immunity Act does not impose new duties
on municipalities; rather, it restates and codifies common-law principles. Mostafa v. City of
Hickory Hills, 287 Ill. App. 3d 160, 168 (1997). The distinction between a duty and immunity
is critical “because only if a duty is found is the issue of whether an immunity or defense is
available to the governmental entity considered.” Zimmerman v. Village of Skokie, 183 Ill. 2d
30, 46 (1998). Where the defendants owe no duty, we need not reach the immunity issue. Vega
v. Northeast Illinois Regional Commuter R.R. Corp., 371 Ill. App. 3d 572, 582 (2007).
Accordingly, we affirm the dismissal of plaintiff’s complaint.
¶ 38 III. CONCLUSION
¶ 39 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 40 Affirmed.
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