Yarborough v. City of Springfield

2023 IL App (4th) 220025-U

MARY YARBOROUGH, Individually and as Special Administrator of the Estate of Eric M. Jones, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD, Defendant-Appellant.

No. 4-22-0025

Court of Appeals of Illinois, Fourth District

February 22, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County No. 08L176 Honorable Ryan M. Cadagin, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Lannerd and Knecht concurred in the judgment.

ORDER

TURNER, JUSTICE

¶ 1 Held: The trial court did not err in denying defendant's motion for judgment notwithstanding the verdict.

¶ 2 In July 2008, plaintiff, Mary Yarborough, individually and as special administrator of the estate of her 16-year-old son, Eric M. Jones, filed the wrongful death suit at issue in this case against City Water Light and Power (CWLP) and the City of Springfield (City) after Eric drowned at a public beach at Lake Springfield (the beach). In January 2015 plaintiff filed a second-amended complaint which named the City as the sole defendant. In February 2015, a jury returned a verdict in plaintiffs favor. The City appealed, and this court reversed the trial court's judgment and remanded the case for further proceedings, holding the trial court abused its discretion in admitting as evidence an internal policy regarding lifeguard placement at the beach. Yarborough v. City of Springfield, 2016 IL App (4th) 150336-U, ¶ 75. On remand, after a second trial, a jury again returned a verdict in plaintiff's favor. On January 5, 2022, the trial court denied the City's motion for judgment notwithstanding the verdict. The City appeals, arguing its motion for judgment notwithstanding the verdict should have been granted because it is entitled to immunity pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2006)). We affirm.

¶ 3 I. BACKGROUND

¶ 4 At the second jury trial in May 2021, the parties stipulated the employees at CWLP and the beach were agents of the City. The parties also stipulated Eric Jones died from asphyxia by drowning.

¶ 5 Douglas England testified he was the utility property manager for CWLP and involved in the operation of the beach when Eric drowned in July 2007 but was not present and had no personal knowledge of what occurred. England was not a lifeguard and had no expertise with regard to a lifeguard's job. Prior to overseeing the beach, he had never managed an open-water facility or a pool. England testified he did not hire anyone at the beach but made sure the beach employees had what they needed to perform their duties. When the beach was open, he would check in once or twice per day. His position outranked the beach managers and lifeguards. He had the authority to direct the beach employees. However, he was not involved in the training or certification of the lifeguards. He did not know if the lifeguards were given training manuals.

¶ 6 England testified the beach managers made sure the beach operated appropriately and were to report any serious problems to England. Like England, the beach managers also did not supervise the lifeguards with regard to rescues supervising the patrons, or on-site lifeguard training. England did not know if the beach managers in 2007 were certified lifeguards.

¶ 7 England believed a procedure was in place for locating missing persons and bathers at the time Eric drowned, which included clearing the water, checking the facilities for the person, and starting a line search in the water if the person was not found. He had heard an emergency action plan (EAP) being discussed but did not recall ever seeing one at the beach. England claimed a document called "Emergency Procedures" was either given to the beach managers and lifeguards or posted in the office or lifeguard room. He had not found any other lists of emergency procedures. He expected the lifeguards and beach managers would have known of these emergency procedures. The "Emergency Procedures" document indicated lifeguards should blow their whistle one time to warn a patron, two times to get the attention of the other guards, and three times for a true emergency such as a lost child or drowning patron. England testified a line search, where the guards linked arms and walked through the water, would be the best type of search to use at the beach because of the opaque water. England believed beach patrons should have been able to rely on the lifeguards performing their jobs. However, he also noted signs were posted in the locker rooms and the water instructing novice swimmers to stay in shallow water. In addition, a buoy line separated the shallow water from the deeper water.

¶ 8 Three to four weeks before Eric's death, after a patron complained to the mayor's office about what the patron believed to be an inappropriate number of lifeguards at the beach, England prepared a handwritten memo, which he said reflected the policy which had been in place during his tenure as the utility property manager. The memo indicated a lifeguard needed to be in the area of the diving board when used, the slide when used, and the middle area of the water if someone was in the water there. He said the lifeguards and beach managers should have been familiar with the information in the memo. Plaintiff's counsel and England then had the following exchange:

"Q. Now I'm going out on a limb here in saying that you underlined the word 'must' and the manner in which you delivered this memo, half dozen or more [copies] to the beach personally, you were a little upset about the complaint?

A. I don't know if I was upset. I was just wanting to reiterate where we want guards and why.

Q. Okay. And do you believe that you would have delivered this memo in person to the beach house ***?

A. Yes."

It is not clear who he gave the copies of the memo to at the beach house.

¶ 9 Brittany Young-Hunter testified she was a certified lifeguard for the City in 2007 but had no experience in an open-water facility prior to working at the beach. She did not recall being given any manuals explaining procedures and policies at the beach. She did take a fitness and agility test at the beach. To pass the test, a lifeguard had to jump from the balcony of the beach house onto a pile of sand, run to the water, swim to the seawall, and then get back to the sand pile in three minutes or less. Young-Hunter testified a missing swimmer needed to be found within three minutes to avoid brain damage.

¶ 10 Young-Hunter did not remember doing any in-service training at the beach before she was allowed to work while the beach was open to the public. She testified she was a head lifeguard in 2007, had more responsibilities than a normal lifeguard, considered England to be her supervisor, and was never told she was to train the other lifeguards. In addition, she testified she was never given an EAP, never practiced a missing person EAP, and never did any "dummy drop" drills while working at the beach. A "dummy drop" drill requires lifeguards to locate a dummy the size of a child in the water, bring it to the surface, and then perform cardiopulmonary resuscitation (CPR). EAPs were discussed at both her StarGuard and Red Cross certification training. According to Young-Hunter, EAPs are necessary because they help lifeguards respond faster in emergency situations. Based on her training with StarGuard and Red Cross, the EAPs should be written down so everyone knows what to do. Young-Hunter also testified EAPs need to be site specific.

¶ 11 When Eric drowned, two lifeguard chairs were in use. They were the "south mid chair," which was between the shoreline and the seawall on the south side of the swimming area, and the "slide chair," which was by the waterslide. Chase Gobble replaced Young-Hunter in the "slide chair" before the incident. Denis Caveny was in the "south mid chair." When Gobble announced for everyone to clear the water on his megaphone, Young-Hunter was not in the water. She ran toward Gobble to assess the situation. Gobble looked panicked. Someone said a patron was underwater or missing. Young-Hunter went into the water and noticed Caveny was no longer in the "south mid chair." She asked Gobble what happened but was given no information other than that they had a missing swimmer. While moving toward the deep end of the swimming area, she heard a woman, who she believed was a family member or friend of the missing person, say the missing person was by the seawall. Young-Hunter did not know whether the missing person could swim. She also did not know the swimmer's last known location, which was important information based on her training. Neither Denis Caveny nor any other lifeguard told her anything about Eric except he was missing. When she and Gobble got out to the area identified by the woman, she started diving looking for the missing person. After searching, she started blowing her whistle. When the other lifeguards who were working but were not on active duty at that moment started to respond, she noticed some of the guards had to go back to get rescue buoys. After the guards got in the water, the search for the missing swimmer was chaotic and unorganized. She tried to organize a line search, but everyone was so frantic she did not think her suggestion registered with the other lifeguards.

¶ 12 According to Young-Hunter, during a line search, the lifeguards line up, hold hands, and walk together while dredging their feet back and forth until they cannot touch the bottom of the lake. Then, while staying in line, the lifeguards would start diving and feeling...