No. 3--04--0860
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2005
| DEBORAH FRAYNE, Special Administrator of the Estate of Kenneth J. Frayne, Deceased, Plaintiff-Appellant, v. DACOR CORPORATION, MINOOKA Defendants-Appellees. | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois
No. 03--L--20
Honorable Lance R. Peterson, |
JUSTICE SCHMIDT delivered the opinion of the court:
This case arises out of the tragic death of Channahonfirefighter Kenneth Frayne as Frayne trained to rescue others.Plaintiff, Deborah Frayne, as special administrator of the estateof her husband, Kenneth Frayne, filed this action seeking torecover damages following her husband's drowning in a lake at theCoal City Area Club (the Club). Kenneth Frayne was a scuba diverfor the Channahon Fire Protection District, participating in amulti-agency dive rescue training exercise at the time of hisdrowning. The defendants relevant to this appeal are the variousfire protection districts and employees thereof who alsoparticipated in the exercise. The defendants moved for summaryjudgment claiming statutory immunity. The circuit court ofGrundy County granted defendants' motion. Plaintiff appeals.
BACKGROUND
The training exercise mentioned above took place on October13, 2001. In addition to Mr. Frayne from the Channahon FireProtection District (Channahon), other area rescue teamsrepresented in the training exercise included the Coal City FireProtection District (Coal City), the Braidwood Fire Departmentand Braidwood Fire Protection District (Braidwood), and theMinooka Fire Protection District (Minooka).
At issue in this appeal are counts V through XVI ofplaintiff's third amended complaint. These counts are directedagainst Minooka, Braidwood, Craig Kasher (a Braidwood employee),Coal City, and Shawn Anderson (a Coal City employee).
Plaintiff alleges that Minooka purchased and became owner ofthe scuba diving equipment used by Mr. Frayne during theexercise. Plaintiff continues that Minooka was, in fact,supervising and controlling the lake as part of its participationin the training exercise. Plaintiff further alleges that thefire protection entities had an agreement among themselves toparticipate in dive training exercises on a regular basis.
Plaintiff claims that pursuant to that agreement, Coal Cityrequested and obtained permission from the Club to "use, occupyand control a part of the lake and its adjacent land to conductthe multi-agency dive training exercise." Plaintiff maintainsthat these entities controlled every facet and imaginable detailof the training exercise. Plaintiff argues that it was,therefore, (the duty of these entities) to exercise a reasonabledegree of care and caution with regard to, not only the equipmentused in the dive, but the parameters, conditions, and rules ofthe exercise itself. Plaintiff alleges that the breach of one ormore of these duties proximately caused the death of plaintiff'sdecedent.
Defendants claim that as local public entities or employeesthey are immune from liability for the drowning of plaintiff'sdecedent in a body of water over which they had no control asdefined by the statute. 745 ILCS 10/3--110 (West 2002).
Jody Ritz is the Club manager. The Club is run by itsofficers and a 13-person board. The Club charges an annual feeand has various activities including fishing, boating, andcamping. There are no scuba activities or lessons allowed at theClub apart from the dive training exercises conducted by the fireprotection districts. The Club covers 1,000 acres and includes amain lake. The Club is primarily accessed by key at the frontentrance which opens an electronic gate.
Shawn Anderson was one of the 13 board members of the Club. At the October 9, 2001, monthly meeting, the board discussedusing the Club's facilities for a dive training exercise. Theboard agreed to allow the firefighters to use the lake for theexercise. There was no written contract between the Club and thefirefighters and no fee was charged for the use of the lake.
The exercise took place on October 13, 2001. Ritz was atthe Club during the time of the exercise and spent approximately40 minutes in the vicinity where the exercise was occurring. Noother club members were in the area where the exercise was takingplace and Ritz was unaware of any interaction between othermembers of the Club and the divers.
According to Ritz, the firefighters determined whichparticular members of the municipalities would take part in theexercise. All of the equipment was supplied by the firefighters. The firefighters determined the parameters of the operation,including how long they would be there and who was responsiblefor cleaning up when they left. The Club put no restrictions onthe divers concerning the type of dive training exercises theywould perform or how long the exercise would last. No one fromthe Club gave any order or direction to the firefighters. No onefrom the Club controlled the activities of the dive team orsupervised what they were doing.
Each of the participating fire protection districts had adive coordinator of its own who took part in the trainingexercise. Ed Wrobel and decedent, Kenneth Frayne, participatedfrom Channahon. Rich Arnold and Mike Thompson participated fromMinooka. Coal City was represented by Shawn Anderson, TonyMauro, Willie Wrenn, and Tim Schulz. Craig Kasher was the onlyrepresentative from Braidwood. Ed Wrobel testified in hisdeposition that the Coal City dive team was responsible forsafety precautions with respect to activities that were beingconducted in the lake.
Craig Kasher from Braidwood stated that the exercise was oneof several "cross trainings" in which Channahon, Braidwood, andCoal City routinely participate. Kasher stated that the "divetraining exercise was supervised by Shawn Anderson of the CoalCity Fire Protection District." Anderson would provide directionwith regard to each drill. Kasher further remarked that he didnot know who was controlling, supervising, managing, operating,or maintaining the lake in the area where the dive was beingconducted at the time it was being conducted.
Richard Arnold of Minooka also participated in the dive. Itwas Arnold who supplied the allegedly defective scuba regulatorto Kenneth Frayne. Arnold stated that he did not know who wascontrolling, supervising, managing, operating, or maintaining thelake at the time of the dive. In his opinion, Shawn Anderson wassupervising the dive activities that were being conducted in thewater that day.
Shawn Anderson is a lieutenant and dive coordinator for CoalCity. He has been a board member of the Club since 1996. As arule, scuba diving is prohibited at the Club apart from divetraining exercises. Anderson noted that since the trainingexercise at issue included entities other than Coal City, it wasnecessary to obtain specific board approval for use of the Club. Anderson brought a request to the board and received itspermission to use the Club. Similar requests had been made inthe past and permission was received on prior occasions. According to Anderson, no restriction of any kind was imposed onthe firefighters by the Club.
Anderson claimed that the general idea of the dive was tohave the divers search for and locate a sunken boat in whichmannequins where placed. No restrictions were placed on thedivers as to the area of the lake that they could search. Likeall others that were at the lake that day, Anderson testifiedthat he not see anyone out on the water other than the diveparticipants.
It was Anderson's belief that Jody Ritz was supervising thelake that day. He based this belief on his knowledge that Ritzis the Club manager and was present at the Club during theexercise. Anderson admitted that he controlled the diveactivities "to a limited extent as the dive trainingcoordinator." Anderson stated that a "diver below" flag wasplaced at the site where the training was being conducted. Thisflag consisted of a 3-foot-round inner tube and a 1