finding that “scant specific facts” offered in support of an expert opinion is a matter that goes to the weight and not to the admissibility of the expert’s opinion and the believability of such an opinion is for a trier of fact to resolve rather than a judge or judges
How later courts described this case
- finding that “scant specific facts” offered in support of an expert opinion is a matter that goes to the weight and not to the admissibility of the expert’s opinion and the believability of such an opinion is for a trier of fact to resolve rather than a judge or judges
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE GREIMAN, dissenting:
I must respectfully dissent for several reasons although the opinion is thoughtfully crafted and persuasive.
I believe that the doctrine of open and obvious still controls in cases where an adult plaintiff dives into a natural body of water and is thereby injured when he hits bottom. The majority correctly observes that the open and obvious doctrine has exceptions and ought not to be slavishly applied. Ward v. K mart Corp. (1990), 136 Ill. 2d 132 , 554 N.E.2d 223 ; but see Mount Zion State Bank & Trust v. Consolidated Communications, Inc. (1994), 267 Ill. App. 3d 402 , 641 N.E.2d 1228 (questioned the continued validity of the doctrine of open and obvious).
However, it is precisely this genre of cases to which it is still applicable. Dowen v. Hall (1989), 191 Ill. App. 3d 903 , 548 N.E.2d 346 , sets forth the law in Illinois with respect to adult plaintiffs injured during a dive into a body of water. In the instant case, the majority rests its decision upon the fact that the dive is from rocks along the Lake Michigan shore and that there is a ladder attached to the rocks which perhaps is an invitation to dive off the rocks into unknown waters. The majority concludes that the ladder is so inviting that an exception is created to the open and obvious doctrine. To support such a conclusion, the majority relies upon Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430 , 566 N.E.2d 239 , Ward ( 136 Ill. 2d 132 , 554 N.E.2d 223 ), Bucheleres v. Chicago Park District (1994), 269 Ill. App. 3d 791 (a companion case filed on this day), and Pullia v. Builders Square, Inc. (1994), 265 Ill. App. 3d 933 , 638 N.E.2d 688 .
Deibert and Ward both acknowledge that although the duty of care does not extend to known or obvious conditions unless harm can be anticipated despite the obviousness, there can be an exception to this rule where an invitee’s attention can reasonably be expected to be distracted. The existence of a ladder is neither the kind of condition that is likely to distract the plaintiff so that he dives off the rocks nor should it diminish the all too apparent risk to be anticipated by a dive into unknown waters.
A closer case is Pullia, where the plaintiff caught his jewelry on the defendant’s display rack when he stepped upon the rack to reach merchandise on a top shelf. The Pullia court reasoned that summary judgment was precluded because whether the rack was an open and obvious danger was a question of fact for the jury. In contrast to Pullia, I need not devote much space to the proposition that a dive into a body of water of unknown depth and character is an open and obvious danger.
Having made that observation, I would have been willing to return this matter to the circuit court for a determination of the facts by a jury if defendant was not a unit of local government sued for its maintenance of recreational facilities. In 1986, the Illinois General Assembly amended the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Act) to provide:
"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” 745 ILCS 10/3 — 106 (West 1992).
The Act defines wilful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others.” 745 ILCS 10/1 — 210 (West 1992).
It is difficult to imagine that the conduct alleged by plaintiff, i.e., placing a ladder on the rocks, is so egregious as to fall within the penumbra of wilful and wanton. Even if the placement of the ladder was negligence on the part of defendant, the law recognizes a clear distinction between negligence and wilful and wanton conduct. (Ziarko v. Soo Line R.R. Co. (1994), 161 Ill. 2d 267 , 641 N.E.2d 402 ; Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429 , 593 N.E.2d 522 .) Thus, even if I were to concede that the defendant failed to act with reasonable care, the facts do not establish the kind of ill will, intention to cause harm or conscious indifference to the safety of plaintiff to establish a factual basis for wilful and wanton conduct. Generally, this determination is reserved for the trier of fact. (E.g., Brown v. Chicago Park District (1991), 220 Ill. App. 3d 940 , 581 N.E.2d 355 .) However, based upon the present record, there are no questions of fact which, if resolved in plaintiff’s favor, would sustain a jury’s determination of wilful and wanton. See Castaneda v. Community Unit School District No. 200 (1994), 268 Ill. App. 3d 99 (affirmed summary judgment to defendants, finding that the uncontested facts were insufficient as a matter of law to constitute wilful and wanton conduct).
For these reasons, I must respectfully dissent.