LAKES AND OTHER BODIES OF WATER
IN PARKS: SPECIAL LIABILITY
CONCERNS
Presented and Prepared by:
Maura Yusof
[email protected]
Chicago, Illinois • 312.853.8700
Heyl, Royster, Voelker & Allen, P.C.
PEORIA • CHICAGO • EDWARDSVILLE • ROCKFORD • SPRINGFIELD • URBANA
© 2016 Heyl, Royster, Voelker & Allen, P.C.
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LAKES AND OTHER BODIES OF WATER IN PARKS:
SPECIAL LIABILITY CONCERNS
I.
INTRODUCTION............................................................................................................................................. I-3
A.
B.
C.
D.
E.
F.
G.
II.
NOTABLE DECISIONS .................................................................................................................................. I-6
A.
B.
C.
III.
Ward v. Mid-American Energy Co., 313 Ill. App. 3d 258 (3d Dist. 2000) .................... I-6
Bier v. Leanna Lakeside Property Assoc., 305 Ill. App. 3d 45, 53 I-6
(2d Dist. 1999) ................................................................................................................................. I-6
Hall v. Henn, 208 Ill. 2d 325 (2013) .......................................................................................... I-7
RECENT COURT DECISIONS ...................................................................................................................... I-8
A.
B.
C.
IV.
Liability & Defense Issues – Park Districts’ Bodies of
Water and Pools ............................................................................................................................. I-3
The Tort Immunity Act – 745 ILCS 10/1-101 et seq. .......................................................... I-3
Contributory Negligence and Comparative Fault .............................................................. I-4
No Duty to Warn – Open and Obvious Condition ........................................................... I-4
Primary Assumption of the Risk ............................................................................................... I-5
Waiver and Release ...................................................................................................................... I-5
Recreational Use of Land and Water Areas Act, 745 ILCS 65/1 et seq. ...................... I-6
Fennerty v. City of Chicago, 2015 IL App (1st) 140679 ..................................................... I-8
Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578...................................................... I-8
Lucasey v. Plattner, 2015 IL App (4th) 140512..................................................................... I-9
RISK MANAGEMENT AND INSURANCE ISSUES AS TO MAINTENANCE
OF DOCKS AND OTHER DANGER ZONES FOR SWIMMERS......................................................... I-9
The cases and materials presented here are in summary and outline form. To be certain of their applicability and use
for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.
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LAKES AND OTHER BODIES OF WATER IN PARKS:
SPECIAL LIABILITY CONCERNS
I.
INTRODUCTION
There are special liability concerns when it comes to lakes and other bodies of water in parks.
These materials provide an overview of the liability theories and defenses to reduce exposure to
potential liability to park district facilities at lakes, ponds, rivers, and pools.
A.
Liability & Defense Issues – Park Districts’ Bodies of Water and Pools
Litigation - Typical Premises Liability Theories:



Negligence vs. Willful and Wanton Conduct
Duty to Warn
Latent harms as compared to open and obvious conditions
Typical Premises Liability Defenses:






B.
The Tort Immunity Act
Contributory Negligence and Comparative Fault
No Duty to Warn – Open and Obvious Condition
Primary Assumption of the Risk
Waiver and Release
Recreational Use of Land and Water Areas Act.
The Tort Immunity Act – 745 ILCS 10/1-101 et seq.
The Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) is
an important safeguard for local public entities. A park district cannot be liable for an accident
unless it is guilty of willful and wanton conduct and that conduct proximately caused the injury.
A public entity may be found to have engaged in willful and wanton conduct if it had been
informed of a dangerous condition, or knew others had been injured because of the condition,
or if it intentionally removed a safety device or feature from property used for recreational
purposes.
These sections have particular importance:
1) Section 3-106, which applies to conditions on recreational facilities;
2) Section 3-108, which applies to supervision immunity; and
3) Sections 2-105 and 2-207, which apply to immunity for failure to make an inspection
of the property.
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Section 3-106 of the Tort Immunity Act provides:
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.
The character of the property as a whole determines whether Section 3-106 of the Tort
Immunity Act applies to property used for recreational purposes. Public property may have
more than one intended use. Courts will consider whether property was used for recreation in
the past or whether recreation was encouraged there. If Section 3-106 is applicable, it is not only
applicable to the immediate area where the “recreation” occurs, but also to areas that are useful
to that recreational area (i.e., restrooms on park grounds).
C.
Contributory Negligence and Comparative Fault
Under the common law, contributory negligence of a plaintiff was often a complete bar to
recovery. Under Illinois Comparative Negligence Rule, if the plaintiff is 51 percent or more
negligent, then the claim is barred.
D.
No Duty to Warn – Open and Obvious Condition
The defense of “No Duty to Warn” is the primary legal liability theory for water sports and
recreational liability cases. The argument is that the defendant failed to inform the injured
person of the risk and danger involved. The plaintiff’s approach is usually that the defendant had
superior knowledge and control of the situation, but failed to take proper safety precautions and
failed to let the plaintiff know of the hidden or latent dangers so that the plaintiff could be
aware of the risks.
Under Illinois law, a landowner owes no duty of reasonable care to trespassers, except to refrain
from willfully and wantonly injuring them. While a landowner owes a duty to children to warn
them of latent harms that a child might not reasonably apprehend, it owes no duty with respect
to obvious harms. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948. Drowning in water is
an obvious danger. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d
110, 118 (1995).
A possessor of land may be liable for injuries to children under this doctrine if the child’s
presence should have been reasonably anticipated or foreseeable. Illinois does not recognize
the “attractive nuisance” doctrine per se. The Restatement (Second) of Torts, §339 states:
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A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if:
(a) the place where the condition exists is one upon which the possessor knows
or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or
serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize
the risk involved in intermeddling with it or in coming within the area made
dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved,
and
(e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.
Restatement (Second) of Torts § 339 (1965).
E.
Primary Assumption of the Risk
Where inherent risks are voluntarily assumed by a plaintiff, the doctrine of primary implied
assumption of the risk remains as a potential bar to a plaintiff’s recovery. Intentional exposure to
a known risk negates a defendant’s liability. Two factors are considered:
1. whether the defendant owed a legal duty to protect the plaintiff from a particular risk of
harm that caused injury, and
2. whether the plaintiff had both knowledge and full appreciation of the danger involved
and voluntarily and deliberately exposed himself to the risk.
F.
Waiver and Release
It is a common practice for water sports and other recreational activities to require participants
to agree in writing to assume all risks and release the organizer or vendor from liability. The
waiver must be made knowingly and voluntarily. In this context, the effectiveness of a waiver
often depends upon the following factors:
1. clarity of the written waiver,
2. the size of the type face and font in providing notice of the waiver to the participant,
3. the amount of time given to the participant to read and review the waiver, and
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4. whether the terms of the waiver were verbally explained to the participant.
G.
Recreational Use of Land and Water Areas Act, 745 ILCS 65/1 et seq.
Even if the Tort Immunity Act does not apply, the Illinois Recreational Use of Land and Water
Areas Act (Act) may apply as a defense in certain actions to protect a land owner from liability
arising from negligent (but not willful and wanton) failure to prevent or warn of a dangerous
condition on the premises. Under the Act, land includes water and water courses. Additionally,
an "owner" includes the possessor of any interest in land, whether it be a tenant, lessee,
occupant, the State of Illinois and its political subdivisions, or person in control of the premises.
However, keep in mind there are important exceptions to protection under the Act for:
1. willful and wanton failure to guard or warn against a dangerous condition, use, structure,
or activity; and
2. injury suffered in any case where the owner of land invites, as defined in subsection (f) of
Section 2 of this Act, or charges the person or persons who enter or go on the land for
the recreational use thereof.
745 ILCS 65/6.
II.
NOTABLE DECISIONS
A.
Ward v. Mid-American Energy Co., 313 Ill. App. 3d 258 (3d Dist. 2000)
Plaintiffs sued the owner of a dam near where the deceased minors drowned, alleging that the
owner was negligent in failing to place or maintain warning signs regarding dangerous manmade underwater currents. The court held that the dam owner owed the minors a duty to warn,
since the underwater currents were not apparent from the surface, were man-made by the
owner, and the owner knew of six previous drownings in the area.
The court noted that “[u]nder Illinois law, persons who own, occupy, or control and maintain
land are not ordinarily required to foresee and protect against injuries from potentially
dangerous conditions that are open and obvious.” Ward, 313 Ill. App. 3d at 260. Whether a body
of water is natural or artificial, it is still deemed to present an open and obvious danger.
However, the court reasoned that although certain dangers of the water were obvious such as
strong currents and submerged obstacles, the increased risks caused by the owner including the
man-made currents were hidden and latent beneath the surface and therefore the defendant
owed a duty to warn plaintiffs’ decedents of the dangerous conditions.
B.
Bier v. Leanna Lakeside Property Assoc., 305 Ill. App. 3d 45, 53 (2d Dist.
1999)
In Bier, a swimmer brought an action against a lakeside property for damages for personal
injuries he sustained when he fell from a rope swing into a lake which rendered him
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quadriplegic. The court held there is no duty to warn the swimmer of the open and obvious
danger of the rope swing. The court reasoned that although placing a duty on the association to
remove the rope swing would not have been a great financial burden, the swimmer at least had
knowledge of the condition equal to that of the association and was able to appreciate the risk
involved with the height, water, and the rope swing, yet nevertheless decided to undertake it.
C.
Hall v. Henn, 208 Ill. 2d 325 (2013)
In 2003, the Illinois Supreme Court ruled that the protections of the Act do not apply when the
property at issue is used only by invited guests. In order for the protections of the Act to apply,
the property must be open for use by the general public. Hall, 208 Ill. 2d at 331. In Hall, the
Supreme Court stated:
The Recreational Use of Land And Water Areas Act (the Act) exists "to encourage
owners of land to make land and water areas available to the public for
recreational or conservation purposes by limiting their liability toward persons
entering thereon for such purposes." 745 ILCS 65/1 (West 2002). To that end, the
Act provides that owners of land owe "no duty of care to keep the premises safe
for entry or use by any person for recreational or conservation purposes, or to
give any warning of a natural or artificial dangerous condition, use, structure, or
activity on such premises to persons entering for such purposes." 745 ILCS 65/3
(West 2002). In addition, the Act provides that:
An owner of land who either directly or indirectly invites or permits
without charge any person to use such property for recreational or
conservation purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose.
(b) Confer upon such person the legal status of an invitee or licensee to
whom a duty of care is owed.
(c) Assume responsibility for or incur liability for any injury to person or
property caused by an act or omission of such person or any other person
who enters upon the land.
(d) Assume responsibility for or incur liability for any injury to such person
or property caused by any natural or artificial condition, structure or
personal property on the premises." 745 ILCS 65/4 (West 2002).
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The Act does not immunize landowners who engage in willful and wanton
conduct, nor does it apply to landowners who charge a fee for the use of their
property. 745 ILCS 65/6 (West 2002).
Hall, 208 Ill. 2d at 328-29.
III.
RECENT COURT DECISIONS
A.
Fennerty v. City of Chicago, 2015 IL App (1st) 140679
The plaintiff was injured when she tripped and fell as a result of a large dip near a utility box on
City property. The property was a grassy area that ran lengthwise between two lanes of a
boulevard, dotted by mature trees, and contained a bench. The plaintiff claimed the City
carelessly and negligently maintained the property, and that it was also guilty of willful and
wanton conduct because the City had actual knowledge of the dangerous condition, but failed
to provide sufficient warning of the dangerous condition.
The trial court granted the City’s motion for summary judgment, finding the City was immune
under section 3-106 of the Tort Immunity Act because the property was recreational and the
City’s action or inaction was not willful and wanton. The focus was on whether the grassy area
was “public property intended or permitted to be used for recreational purposes;” and whether
the City’s action or inaction was willful and wanton. Fennerty, 2015 IL App (1st) 140679, ¶ 12.
The appellate court reversed the trial court’s decision on the recreational property issue because
it found that a genuine issue of material fact existed as to whether the property was recreational
property. The court reasoned that, from the evidence presented, the grassy area could be either
a median between traffic lanes or a parkway. In addition, there was no evidence presented
regarding the permitted or encouraged use of the property in question. As to the trial court’s
grant of summary judgment in favor of the City on the willful and wanton count, the appellate
court relied on the definition of willful and wanton conduct provided in section 1-210 of the Tort
Immunity Act. A public entity engages in willful and wanton conduct if its actions show “an
actual or deliberate intention to cause harm or which, if not intentional, show an utter
indifference to or conscious disregard for the safety of others or their property.” Id. ¶ 17. The
public entity’s requisite knowledge regarding the safety of others can be either actual or
constructive.
The appellate court concluded that although the City’s conduct could “arguably be characterized
as negligent, it did not show an actual or deliberate intention to cause harm or an utter
indifference to, or conscious disregard for, the safety of others.” Id. ¶ 23. Additionally, as there
was no evidence that the City knew (or should have known) that the raised boxes were
dangerous, the City’s failure to discover the defect was not willful and wanton.
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B.
Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578
The risk of diving into a lake is open and obvious and a land owner owes no duty to the plaintiff
unless the plaintiff can establish an exception to the open and obvious doctrine. Krysztof
Bujnowski broke his neck after diving into a lake at defendant’s resort. At the time, no
employees of defendant were monitoring the area.
Bujnowski alleged failure to supervise or train customers properly and failure to warn them of
the dangers of using the area. The plaintiff testified that he dove off the edge of the pier. His
hands, followed by his forehead, struck the bottom of the lake. He was able to return to the pier,
but suffered serious injuries. The defendant’s motion for summary judgment included a
photograph of a large sign showing “NOTICE” and listing Beach Regulations. Among these
regulations was “Diving in shallow water is not permitted.” The trial court granted summary
judgment.
On appeal, the court held that the risk of striking the bottom of a lake is open and obvious and
the plaintiff never contended an exception to this doctrine applied; he never contended he was
distracted from the risk or that some sort of compulsion made it reasonably foreseeable that he
would proceed to encounter the known risk of diving into the water as the lesser evil of two
choices. The appellate court concluded defendant owed no duty to plaintiff.
C.
Lucasey v. Plattner, 2015 IL App (4th) 140512
This case pertains to a retaining wall covered by snow and the duty to warn. The plaintiff
claimed he was distracted by the task of having to measure the back of the house. The court
found Lucasey was in control of the distraction and it was not foreseeable that an experienced
real estate appraiser would be unable to complete his measurements without falling off the wall.
The deliberate encounter exception to the open and obvious doctrine requires a showing that
the possessor of land has reason to expect the invitee will proceed to encounter a known
danger because, to a reasonable man in his position, the advantages of doing so would
outweigh the apparent risk. The court found that it was not reasonably foreseeable that
completing the task of measuring for an appraisal could only be accomplished by risking a fall
from the retaining wall. The court affirmed the trial court’s finding that there was no duty owed
to the plaintiff.
IV.
RISK MANAGEMENT AND INSURANCE ISSUES AS TO MAINTENANCE OF DOCKS
AND OTHER DANGER ZONES FOR SWIMMERS

Obtain written contracts. Do not rely on verbal assurances.

Obtain indemnity/hold harmless agreement in favor of your park district.
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
Require certificates of insurance with your park district as an Additional Insured for
liability, auto liability, workers’ compensation, and builders’ risk.

Liability limits should be a minimum of $1 million.

Get assurance the contractor will adhere to OSHA safety standards.

Consult with counsel as to other limitations of liability and exculpatory language to avoid
litigation in the future.
These same considerations apply to management by yacht club boards, including considerations
for the interplay with the park district and contracted harbor management companies.
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Maura Yusof
- Of Counsel
Authority (RTA), the Illinois Department of
Revenue, and a Cook County municipality
contending that the assessment of back sales
taxes of $20+ million was incorrect. Ultimately,
the RTA's position was upheld in the Illinois
Supreme Court. While the taxpayer was not
required to pay back taxes pursuant to the
Taxpayer Bill of Rights, the Illinois Supreme
Court invalidated existing regulations in
adopting a "multi-factor test" as argued for by
the RTA, a decision which had statewide
application to sales tax sourcing favoring
governmental entities such as our client.
Maura’s practice spans a wide variety of litigation –
from commercial disputes to medical malpractice and
product liability claims to employment law. Her
primary areas of practice include commercial
litigation, product liability, construction and premises
liability, healthcare, cannabis business & law, and
medical malpractice defense. As a primary focus of
her commercial practice, she has worked on several
cases related to retail sales tax sourcing litigation. Her
practice also encompasses large loss property
subrogation matters pending throughout the United
States and internationally. She has mediated and
arbitrated numerous cases, including a three-week
arbitration in Tokyo, Japan, that resulted in a multimillion dollar recovery for a construction defect
matter, which arbitration award the Japanese courts
affirmed on appeal. Her practice has involved various
types of property damage claims, including
construction defects, product defects, fires,
explosions, and boiler and turbine failures. The nature
of her practice has required regular analysis of
contract documents, including whether exculpatory
provisions and limitations of liability are enforceable
based on the applicable state's law. In the subrogation
area, her experience also includes obtaining
recoveries arising out of workers’ compensation
claims.
Publications
 Law Review: Articles and Notes Editor,
Washington University Journal of Law and Policy
Public Speaking
 “Lakes and Other Bodies of Water in Parks: (Part
1) Special Liability Concerns; (Part 2) Risk
Management and Insurance; and Parades and
Festivals in Parks – Liability Issues and Recent
Decisions”
IAPD/IPRA "Soaring to New Heights" Conference
(2016)
 “Parades and Festivals in Parks – Liability Issues
and Recent Decisions”
Illinois Association of Park Districts: Legal
Symposium (2015)
 “Representing Medical Practices & Physicians:
Medicare and Medicaid Liens”
Illinois Institute for Continuing Legal Education,
Chicago, Illinois – (2015)
 “Concealed Carry in Illinois: Employer Rights and
Responsibilities”
Illinois Association of Defense Trial Counsel,
Chicago, IL (2014)
 “Triggering the Policy”
DRI Insurance Coverage and Claims Institute,
Construction Defect Track (2012)
 “Settlement Pitfalls”
Heyl Royster's 26th Annual Claims Handling
Seminar (2011)
Maura began her legal career with Heyl Royster in
2002, when she worked at the firm's Edwardsville
office primarily representing corporate defendants in
asbestos toxic tort litigation for serious injury cases
pending in Madison County, Illinois, including product
liability and premises liability claims. In 2004, Maura
moved to Chicago and expanded her litigation
practice to large loss property subrogation matters. In
2010, Maura returned to Heyl Royster to handle
commercial litigation and other civil matters pending
in Chicago as well as asbestos toxic tort claims.
Maura was born in Kabul, Afghanistan and speaks
fluent Dari, a dialect of Persian.
Significant Cases
 Hartney Fuel Oil Company v. Hamer, 2013 IL
115130 - Suit was filed by a retail sales taxpayer
against our client, The Regional Transportation
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Learn more about our speakers at www.heylroyster.com
Professional Recognition
 Martindale-Hubbell AV Preeminent
 Illinois Association of Defense Trial Counsel –
President's Commendation for Leadership and
Service as part of the Cook County Cost & Delay
Task Force, 2013
 Named to the Leading Lawyers Emerging
Lawyers list (2015) for each of the following
practice areas: Commercial Litigation, Products
Liability Defense Law, Personal Injury Defense
Law, and Toxic Torts Defense Law. Only 2
percent of Illinois lawyers under the age of 40 or
who have been licensed to practice for 10 years
or less earn this distinction.
 Named to the Illinois Super Lawyers Rising Stars
list (2012-2016). The Super Lawyers Rising Stars
selection process is based on peer recognition
and professional achievement. Only 2.5 percent
of Illinois lawyers under the age of 40 or who
have been practicing 10 years or less earn this
designation.
Professional Associations
 Illinois Women in Cannabis
 Chicago Bar Association
 American Bar Association
 National Association of Subrogation
Professionals
 International Centre for Dispute Resolution
Young & International Group
 Defense Research Institute
 Illinois Association of Defense Trial Counsel
 Risk and Insurance Management Society, Inc.
(RIMS)
Court Admissions
 State Courts of Illinois and Missouri
 United States District Courts, Northern District of
Illinois, Eastern Division (General and Trial Bar),
Eastern District of Wisconsin, Western District of
Wisconsin, and Eastern District of Pennsylvania
(MDL)
 Pro hac vice admittance in State Courts of
Indiana, New York, Oregon, Arizona, California,
Florida, Ohio, Massachusetts, Maryland, and
internationally in Japan and Taiwan
Education
 Juris Doctor, Washington University School of
Law, 2002
 Bachelor of Science in Language ArtsGovernment (International Affairs) and Spanish,
Georgetown University, 1998
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Learn more about our speakers at www.heylroyster.com