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By James C. Kozlowski, J.D. In the case of Leonard v. Pitstick Dairy Lake and Park, 464 N.E.2d (Ill. App. 3Dist. 1984), "plaintiff Richard Leonard was rendered a quadriplegic as a result of a spinal cord injury incurred when he performed a running dive in the shallow water at defendant's commercial lake in LaSalle County, Illinois." In his suit, Leonard argued that Pitstick was "negligent in permitting young persons, including plaintiff [Leonard], to perform surface dives in shallow water and in failing to post signs warning of the danger." The facts surrounding the incident were as follows: The swimming lake was deepest in the center where two diving rafts were located and where the water was 11 feet deep. About 57 feet from the edge of the water, a steel cable marked the limit of the shallow water, dividing the diving area from the wading and swimming area. From the water's edge at the beach, the water sloped downward at a fairly even rate of decline to the cable where the water was about four feet deep. Lifeguards were located on elevated chairs on all sides of the lake, and all were equipped with a telephone system to communicate between guard stations. A loudspeaker system was also in operation which could be heard throughout the swimming area.
About one-halfway to the cable, when the water was just above his knees, plaintiff put his hands out above his head and performed a horizontal dive into the water which at that point was about 2 1/2 feet deep. His hands hit the bottom of the lake followed by his head with sufficient force to jam his chin into his chest. He heard a pop and felt a sharp pain in his neck and strong tingling sensation through the rest of his body. He was then aware that he was floating face down in the water, but he was not able to move. He held his breath until he was rescued by a lifeguard who had seen him floating face down in the water with his head twitching. The lifeguard realized that something was wrong. The manager of the beach testified that "no effort was ever made to prevent shallow water diving." Two patrons of the beach corroborated this testimony stating "they had made many such shallow water, running dives at Pitstick Lake and had never been warned of the possible danger." The owner of the beach, Edwin Pitstick, testified that "he never knew of anyone getting hurt doing a shallow dive, that he did not perceive any danger to youngsters doing shallow dives before the accident, that it never crossed his mind that a dive in shallow water would likely cause injury, and that he permitted running dives in shallow water." Accordingly, Pitstick argued that he "had no knowledge of any danger from permitting shallow dives and, therefore, was not negligent in permitting such dives and in failing to warn." After a lengthy jury trial, a jury returned a verdict for defendant Pitstick; Leonard appealed. On appeal, Leonard maintained that the trial court had erred in refusing to permit his expert witness on diving mechanics "to express an opinion as to whether it was an unsafe practice to permit youngsters such as plaintiff [Leonard] to make a running head-first entry into the wading area."
The trial court sustained Pitstick's objection to such testimony "on the ground that this question does not require expertise and that it is an issue for the jury to decide." Leonard's expert was, however, Illinois Parks and Recreation 30 July/August 1985 able to provide the following testimony:
[T]here are 800 spinal cord injuries as a result of diving in the United States each year ... 94 percent of those injuries result in quadriplegia . . . [S]uch injuries cause quadriplegia because only a minimal amount of force is required to break the neck and thereby cause damage to the spinal cord ... 50 percent of all quadriplegias occur in the 15 to 25 year age group... 82 percent are male. Such injuries do not occur with younger children because they are shorter, weigh less and lack the strength to generate sufficient force to cause a neck fracture. The most common type of injury is that experienced by plaintiff [Leonard], where the head strikes the bottom in such a way that the chin is forced into the chest and the extreme flexion of the neck causes fractures and dislocation of the cervical vertebrae. As described by the appeals court, "expert witnesses may state an opinion as to the ultimate issue in a case [e.g. whether certain conduct was negligent] without usurping the province of the jury since the trier of fact [i.e. jury] is not required to accept the opinion of the expert." Applying this principle to the facts of the case, the appeals court found that expert testimony would have been helpful to the jury in determining "whether the particular type of diving known as surface or horizontal is dangerous when performed in a portion of the defendant's lake intended for wading."
In the case at bar, the danger of diving head first into shallow water may seem at first glance to be a matter of common knowledge and understanding for which expert testimony is not needed. However, closer examination of the evidence indicates that the nature and extent of the danger of surface or horizontal diving by teenagers in all probability is not commonly understood, even by adults of considerable experience. Neither the manager nor the owner of the beach operation realized the potential danger, particularly for young men of plaintiffs size and age. The jury was denied the assistance of the opinion(s) of expert(s) which would have clarified the principles of speed, motion, force and trajectory involved when a diver enters the water and comes in contact with an immoveable barrier. Consequently, the appeals court found that such expert testimony should have been permitted by the trial court. According to the appeals court, particular importance in this case should have been accorded to "the question of what would be a safe depth of water to permit diving."
Among the duties relating to diving which have been imposed by the courts op the proprietors of bathing resorts or swimming pools are the duties to use care, to provide water of a reasonable safe depth, free from obstructions, or to warn the patrons of the danger of the insufficient depth of, or obstructions in, the water. In addition, the appeals court noted that the plaintiff's age at the time of the accident (15 years of age) was relevant in determining the duty of care Pitstick owed Leonard.
The known characteristics of children should be taken into consideration in determining whether or not sufficient care for the safety of a child has been exercised in a particular case. Accordingly, the fact that children cannot and do not ordinarily exercise the same degree of prudence and care for their own safety as adults impose on those by whose acts or omissions a child may be injured the obligation of exercising more vigilance and caution than might be sufficient with respect to an adult, and conduct which might reach the standard of ordinary care with respect to an adult might, in the case of a child, amount to negligence or even gross negligence.
Based upon the above analysis, the appeals court concluded that the trial court had erred in disallowing the testimony of Leonard's expert witness regarding "the special characteristics of teenagers" and "the scientific knowledge related to the issue of diving safety." The appeals court, therefore, reversed the judgment for defendant Pitstick and remanded the case for a new trial. In a new trial, plaintiff Leonard would be able to present the previously excluded expert testimony to the jury.
Illinois Parks and Recreation 31 July/August 1985 |
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