Three recent decisions by the Illinois Supreme Court will substantially reduce the likelihood of successful lawsuits against park districts and forest preserve districts for a broad range of injuries, especially those resulting from drownings and diving accidents. Until now, aquatic injuries have been the single greatest source of potential legal liability for park districts and other owners of recreational property.

Drowning is the third leading cause of accidental death in the nation, resulting in extensive litigation against park districts and forest preserve districts that operate swimming pools, beaches, and other aquatic facilities, or that have open bodies of water on their property. Victims of non-fatal submersion injuries, or "near drownings," also frequently sue for these injuries, which are usually both devastating and permanent because they involve brain damage.

In addition, diving into open bodies of water and swimming pools is far and away the leading recreational cause of traumatic injury to the spinal cord, surpassing football, gymnastics, surfing, skiing and all other sports and forms of recreation combined. These injuries typically result in quadriplegia or paraplegia.

For the past 20 years, Illinois courts have struggled to determine the extent to which park districts and other property owners owe a legal duty to prevent or at least minimize catastrophic aquatic and other injuries to children and adults using their premises. A court cannot hold a park district or other defendant liable for negligence, or even willful and wanton conduct, until it first determines that the defendant owes a duty to the injured plaintiff.

Until now, aquatic injuries have been the single greatest source of potential legal liability for park districts and other owners of recreational property.

Last November, the Supreme Court reaffirmed in Mt. Zion State Bank & Trust v. Consolidated Communications, Inc. [169Ill.2d 110, 660 N.E.2d 863 (1995)] that aproperty owner has no duty " 'to protect against the ever-present possibility that children will injure themselves on obvious or common conditions.' "This obvious danger rule applies with equal force to adults.

Writing for the Supreme Court majority in Mt. Zion, Justice Charles E. Freeman of Chicago stated that the obvious danger rule is "grounded partially in the notion that parents bear the primary responsibility for the safety of their children. . . . [W]here a child is permitted to be at large, beyond the watchful eye of his parent, it is reasonable to expect, that that child can appreciate certain particular dangers," and therefore will avoid them. The courts apply this same presumption to adults.

Illinois courts previously had recognized fire, drowning in an open body of water such as a lake or river, and falling from a height as obvious dangers against which a property owner has no duty to protect

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even children. In Mt. Zion, the Supreme Court for the first time held that the water in "a swimming pool... is an obvious danger."

The Supreme Court in Mt. Zion reversed an unprecedented ruling by the Appellate Court "that landowners should not have the protection of the open-and-obvious-danger rule when the plaintiff is a child under seven" years of age.

The Supreme Court's decision did not directly address the issue of whether the law will presume that a child under the age of seven can appreciate the dangers posed by a body of water. However, it clearly rejected the Appellate Court's ruling to the contrary by applying the open-and-obvious danger rule to the plaintiff in the Mt. Zion case, who was six years old when he drowned in a neighbor's swimming pool. In fact, courts have applied this rule to bar legal claims on behalf of children as young as two or three years of age.

In Bucheleres v. Chicago Park District [Docket Nos. 78760 and 78790], the Supreme Court on April 18 of this year applied the open-and-obvious-danger doctrine to persons who dive into open bodies of water without first checking the depth of the water or the composition of the bottom. The plaintiff in Bucheleres, a 21-year-old man, dived into Lake Michigan just north of Chicago's Oak Street Beach, assuming but not knowing that the water was deep enough to dive safely. In fact, the water was only about 30 inches deep, and the plaintiff fractured his neck and was rendered a paraplegic.

The Supreme Court observed that " 'bodies of water are deemed to signal obvious danger to persons old enough to be at large precisely because of their unknown surface and subsurface elements,' " including unexpected shallowness or depth, turbulence and undertows, regardless of whether these conditions "were' artificial' rather than' natural.'"

In announcing the decision on behalf of the 6-1 Supreme Court majority in Bucheleres, Justice Mary Ann McMorrow of Chicago acknowledged that "[t]he social utility of our lakefront areas is significant and the desirability of keeping them open to the public is an important concern in balancing the factors used in the analysis of duty." The court expressly recognized that imposing a duty of care upon a park district in a case such as Bucheleres might result in "the curtailment of the public's access to the lakefront and beaches, to the detriment of the public at large."

This language echoed a 1970 Supreme Court decision concerning the Local Governmental and Governmental Employees Tort Immunity Act, which declared that it is the public policy of Illinois to "encourage the development of and maintenance of parks, playgrounds, and other open areas, to be used for recreational purposes."

The public policy rationale for the Bucheleres decision would appear to apply to virtually all park and forest preserve facilities and other property, and not just to beaches and pools.

Prior to the Bucheleres decision, there had been some doubt about the continuing vitality and meaning of the open-and-obvious-danger rule in light of the Supreme Court's ruling in Ward v. K Mart Corporation [136 Ill.2d 132, 554 N.E.2d 223 (1990)]. In Ward. the Supreme Court had held that an obvious danger "may not always serve as an adequate warning of the condition."

In addition, the court for the first time recognized that the obvious danger doctrine does not apply in situations where a property owner should reasonably expect that visitors "will fail to avoid the risk because they are distracted or momentarily forgetful." The plaintiff in Ward collided with a five-foot high concrete post just outside a department store exit while carrying a large mirror that blocked his view. The Supreme Court held that it was reasonably foreseeable to K Mart that customers would run into the post while distracted by carrying large, bulky items.

As a result of the Ward decision, many plaintiffs' attorneys argued—and some courts agreed—that the open-and-obvious-danger rule was "no longer the law in Illinois."

However, in Bucheleres, the Supreme Court clearly "affirm [ed] the continued viability of the open and obvious doctrine" and clarified that the "forgetfulness or distraction" doctrine announced in Ward was only a "narrow exception" to the rule that "the law does not require persons to protect or warn against possible injuries from open and obvious conditions, which by their nature carry their own 'warning' of potential harm."

The court in Bucheleres ruled that the "forgetfulness or distraction exception" does not apply in cases where there is no evidence that the plaintiff was actually forgetful of or distracted from an obvious danger. Several Appellate Court decisions previously had held that the mere possibility or foreseeability of forgetfulness or distraction was sufficient to invoke the exception.

For accidents occurring after March 9, 1995, the General Assembly last year amended the Premises Liability Act to provide that an owner or occupier of land owes no "duty to warn or otherwise take reasonable steps to protect. . . entrants from conditions on the premises that are known to the entrant, are open and obvious, or can reasonably be expected to be discovered by the entrant." This statutory rule includes no "forgetfulness or distraction exception."

The accidents in both Mt. Zion and Bucheleres occurred prior to the effective date of this amendment, which therefore did not apply in these cases. However, Mt. Zion and Bucheleres remain important even for accidents covered by the amendment because they define the types of "open and obvious" dangers to which the amended Premises Liability Act applies and because they will remain good law even if the General Assembly should later repeal this amendment. Justice Moses W. Harrison, II of Fairview Heights was the sole dissenter in both cases.

In Bucheleres, the Supreme Court disregarded the affidavit testimony of Dr. Alan R. Caskey, a park and recreation planner who frequently testifies as an expert witness on behalf of plaintiffs in lawsuits against Illinois park districts and forest preserve districts. The Supreme Court concluded that Dr. Caskey's opinions were not based on per-

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The practical effect of the Mt. Zion and Bucheleres decisions is to insulate park districts, forest preserve districts and other property owners from legal liability for injuries sustained by either children or adults as the result of using an unsupervised body of water, or encountering any other condition of property that is also obviously dangerous.

Among the dangerous conditions that the Appellate Court has recognized as being open and obvious are:
• electric power lines;
• ruts in an outdoor basketball court;
• a metal bracket protruding from a football goalpost;
• a cable strung between two trees;
• folding chairs stacked against the wall in a public building;
• a wet, slippery floor; and
• falling from a stool without a back.

Courts determine whether a danger is open and obvious based on the unique facts of each case.

As a result of the Mt. Zion and Bucheleres decisions, park districts are not legally obligated to prevent access to any property on which a dangerous condition exists by such means as erecting fences or other barriers, providing supervisory personnel, or posting warning signs.

However, in Barnett v. Zion Park District, a decision announced on the same day as Bucheleres, the Supreme Court held that a park district that operates "a public swimming pool or public bathing resort . .. [owes to patrons] a duty to make reasonable provisions and to take reasonable precautions for [their] safety," at least during the hours when the public is invited to use the swimming facility, even though the water in the pool presents on open and obvious danger.

As will be discussed in Part 2 of this article, the Supreme Court also held in Barnett that the Local Governmental and Governmental Employees Tort Immunity Act can protect park districts and other units of local government from liability if they provide lifeguards to supervise their aquatic facilities during posted hours, The Illinois Association of Park Districts (IAPD) co-sponsored "friend of the court" briefs in support of the park district defendants in both Bucheleres and Barnett. IAPD's participation was instrumental in winning two major victories for park and forest preserve districts.

James D. Wascher is an attorney with the Chicago law firm of Friedman & Holtz, P.C. He was lead counsel for the Chicago Park District in the Bucheleres case and for the Zion Park District in the Barnett case. and argued both cases before the Illinois Supreme Court.

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