{ "id": 564588, "name": "VERONICA ANN DIXON, as Special Adm'r of the Estate of Tiffany Dixon, Deceased, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee", "name_abbreviation": "Dixon v. Chicago Board of Education", "decision_date": "1999-03-31", "docket_number": "No. 1\u201498\u20143216", "first_page": "744", "last_page": "750", "citations": [ { "type": "official", "cite": "304 Ill. App. 3d 744" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "573 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5296941 ], "year": 1991, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0108-01" ] }, { "cite": "647 N.E.2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365959 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0416-01" ] }, { "cite": "186 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243891 ], "year": 1998, "pin_cites": [ { "page": "387-88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0381-01" ] }, { "cite": "675 N.E.2d 1386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 366", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544435 ], "year": 1997, "pin_cites": [ { "page": "369-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0366-01" ] }, { "cite": "687 N.E.2d 1042", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "178 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385561 ], "year": 1997, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0370-01" ] }, { "cite": "665 N.E.2d 808", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "weight": 8, "year": 1995, "pin_cites": [ { "page": "385" }, { "page": "391-92" }, { "page": "382", "parenthetical": "\"A sign was posted at the entrance to the [swimming] facility's locker rooms that stated ***** the dates and hours of operation and the general operating rules\"" }, { "page": "388" }, { "page": "391" }, { "page": "392" }, { "page": "393" }, { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "587 N.E.2d 494", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 68", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246057 ], "year": 1992, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0068-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "year": 1986, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "586 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "271" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] } ], "analysis": { "cardinality": 709, "char_count": 12344, "ocr_confidence": 0.774, "pagerank": { "raw": 1.1952668176792946e-07, "percentile": 0.5922837586283988 }, "sha256": "4ceb03f220786db22b92a659273040a725241a8fb5a7d27e0d855d46f274aebd", "simhash": "1:9774145b3e2ee667", "word_count": 2128 }, "last_updated": "2023-07-14T16:20:24.702805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VERONICA ANN DIXON, as Special Adm\u2019r of the Estate of Tiffany Dixon, Deceased, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nOn September 21, 1995, during Englewood High School swimming team tryouts, 16-year-old Tiffany Dixon drowned. This case represents a clash of interests \u2014 the right to sue a public entity for the death of a child due to its alleged failure to supervise against the legislature\u2019s determination to protect that entity from large damage awards.\nVeronica Ann Dixon (Dixon) appeals the trial court\u2019s order granting summary judgment to the Chicago Board of Education (the Board). We affirm.\nFACTS\nEnglewood High School\u2019s swimming team coach Robert Blake (Blake) testified in his deposition:\nEnglewood High School\u2019s volunteer lifeguard, Randy White, asked Blake for permission to leave the pool area for a short time during swimming team tryouts. Blake responded, \u201cokay, I got it, I got it.\u201d Blake described supervising the pool:\n\u201cYou\u2019re aware of the students in your swimming pool, you know who you have in your lanes or you know about how many kids you have in your lane, and you assign them little partners, watch over each other. You try to put out as many safety procedures as you possibly can. But when you actually start to look at one particular student, that\u2019s where you\u2019re at, you\u2019re focusing there.\u201d\nWhen Tiffany entered the pool, Blake was 15 to 20 yards from her, standing on the pool deck. Blake watched Tiffany as she swam 20 yards from the shallow side of the pool into the deep side. Blake said, \u201c[S]he was swimming pretty good and I was very happy about that.\u201d As Tiffany approached the end of the pool after swimming nearly 25 yards, Blake observed, \u201cshe was moving pretty fine. I didn\u2019t see any problems at all, nothing with her breathing. I didn\u2019t see anything. Moving pretty strong.\u201d\nThen, Blake turned his attention to another swimmer:\n\u201cAt that point in time I had other swimmers in the pool. I believe I was watching Mike Washington, *** checking his mechanics as well and see if he was working on his techniques well. So I just scanned him down for a second knowing in my mind at the rate of speed [Tiffany] was moving, that she should reach the end of the pool in time for me to watch Mike and then scan back around and she should have been turning around, coming back at the rate of speed that she was traveling.\n* * *\nI went back to check on Tiffany, and I expected her to be at the wall or coming away from the wall, but she wasn\u2019t there. I\u2019m looking, where is she at, and that\u2019s when I observed that she was at the bottom of the pool.\u201d\nBlake estimated Tiffany was at the bottom of the pool for \u201c[s]econds\u201d as he watched Mike Washington:\n\u201cIt had to be under ten seconds or more or less, it had to be right up in there. It wasn\u2019t any longer than that because I knew she was still in the water swimming. So as I checked for Mike going down [the length of the pool], scanned, okay, he\u2019s fine, I come back, then there she is. It was just like this. It was so quick.\u201d\nThe record also contains three pages of a deposition by Dequita Wade (Wade), another swimmer in the pool at the time of Tiffany\u2019s accident. Wade testified she and Tiffany were swimming together. When Wade finished her third lap, she did not see Tiffany swimming and assumed Tiffany had exited the pool. Wade got out of the pool and went into the locker room. Wade came back, \u201cabout three or four minutes\u201d later, and noticed Tiffany at the bottom of the pool.\nDixon filed a two-count complaint against the Board, alleging, inter alia, the Board through its employees \u201c[flailed to keep a lookout for swimmers in distress.\u201d Dixon\u2019s amended complaint expanded on this allegation, charging the Board:\n\u201c[flailed to adequately keep a lookout for swimmers in distress, particularly [Tiffany], in that a lifeguard was posted at the pool, but left his post at and immediately prior to [Tiffany\u2019s] descending to the bottom of the pool.\u201d\nThe plaintiff agrees her cause of action is based only on the Board\u2019s failure to supervise Tiffany\u2019s swimming activity.\nThe Board filed a summary judgment motion, asserting it enjoyed immunity, as a local public entity, from Dixon\u2019s allegations under section 3\u2014108 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3\u2014108 (West 1994)). The trial court agreed and granted summary judgment to the Board. This appeal followed.\nDECISION\nSummary judgment is appropriate if the record shows \u201cthat there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2\u20141005(c) (West 1994). Summary judgment \u201cis a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt.\u201d Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 271, 586 N.E.2d 1211 (1992), citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). The trial court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party. Loyola Academy, 146 Ill. 2d at 271.\nWe review de novo the trial court\u2019s decision to grant summary judgment. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72, 587 N.E.2d 494 (1992). Interpretation of the Tort Immunity Act is a question of law appropriate for summary judgment. Barnett v. Zion Park District, 171 Ill. 2d 378, 385, 665 N.E.2d 808 (1995).\nSection 3\u2014108 of the Tort Immunity Act provides:\n\u201c(a) Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.\n(b) Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours for such use, the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said hours posted.\u201d 745 ILCS 10/3\u2014108 (West 1994).\nSection 3\u2014108(a) \u201cbars plaintiffs\u2019 claims against local governmental units for their failure to supervise the activities of others.\u201d Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 379, 687 N.E.2d 1042 (1997). The term \u201csupervision\u201d includes coordination, direction, oversight, implementation, management, superintendence, and regulation. Longfellow v. Corey, 286 Ill. App. 3d 366, 369-70, 675 N.E.2d 1386 (1997). Because it does not contain an exception for wilful and wanton misconduct, section 3\u2014108(a) offers absolute immunity. Henrich v. Libertyville High School, 186 Ill. 2d 381, 387-88 (1998); Barnett, 171 Ill. 2d at 391-92.\nThe absolute immunity provided by section 3\u2014108(a) is expressly subject to the exception contained in section 3\u2014108(b). Section. 3\u2014108(b) applies only when a local public entity designates a part of public property for use as a swimming area \u201cand designates by notice posted upon the premises the hours for such use.\u201d 745 ILCS 10/3\u2014108(b) (West 1994).\nThe notice requirement alerts swimmers the local public entity will provide supervision only during the specified hours. The statute is unclear as to whether the local public entity must post this notice in proximity to the swimming area for the notice to have its intended effect. See Barnett, 171 Ill. 2d at 382 (\u201cA sign was posted at the entrance to the [swimming] facility\u2019s locker rooms that stated ***** the dates and hours of operation and the general operating rules\u201d).\nDixon correctly contends the Board owed her daughter a \u201ccommon law duty of reasonable care.\u201d Barnett, 171 Ill. 2d at 388. But there is a distinction between duty and immunity: \u201cthe existence of a duty and the existence of immunity are separate and distinct issues.\u201d (Emphasis in original.) Blankenship v. Peoria Park District, 269 Ill. App. 3d 416, 421, 647 N.E.2d 287 (1995).\nIt follows, then, the issue of supervision at the swimming pool is not relevant here unless there is a fact issue that opens a section 3\u2014108(b) window of exception to the absolute immunity granted the Board by section 3\u2014108(a). For that to happen, the Board must have designated \u201cby notice posted upon the premises the hours for such use.\u201d If it did not, the plaintiff cannot get beyond section 3\u2014108(a) absolute immunity.\nThe only evidence in this record concerning the posted notice comes from Blake, in two short series of deposition questions and answers. We set out those questions and answers in their entirety:\n\u201cQ. Was there any formal announcement made inviting girls to participate in the tryouts?\nA. Yes, yes.\nQ. Was the day in question, which was September 21, 1995, was that the first day of tryouts?\nA. Yes. For girls, yes.\u201d \u25a0\nAnd, later in the deposition:\n\u201cQ. Did you post any type of formal announcement in certain areas of the school\u2014\nA. Yeah.\nQ. \u2014with this invitation to come and join the team?\nA. Yes.\u201d\nSection 3\u2014108(b) requires \u201chours\u201d be posted if there is to be an exception to absolute immunity. \u201cThe plain language of section 3\u2014108 is unambiguous.\u201d Barnett, 171 Ill. 2d at 391. We understand the plaintiff does not have to prove her case before trial, but she is required to present some factual basis that would arguably entitle her to judgment. Patch v. Township of Persifer, 214 Ill. App. 3d 108, 110, 573 N.E.2d 834 (1991). We find no evidence in this record that notice of the hours for use of the pool was posted anywhere on the school premises. This complete failure of proof is fatal to the plaintiffs case. Summary judgment was properly entered.\nAlthough section 3\u2014108(a) controls the outcome of this case, we have examined the question of whether the Board failed to provide supervision during the time Tiffany was in the pool. We note Blake not only was the school\u2019s swimming coach and swimming teacher, he was a water safety instructor. He was on the pool deck when Tiffany was in the water. We believe that was \u201csupervision\u201d as contemplated by the immunity statute. That is:\n\u201cThe plain language of section 3\u2014108(b) unambiguously does not require any particular level or degree of \u2018supervision.\u2019 The legislature omitted from the plain language of section 3\u2014108 any reference to the quality of supervision required thereunder. Thus, the legislature must have intended to provide unconditional immunity for liability when supervision is provided.\u201d Barnett, 171 Ill. 2d at 392.\nThe public agency does not lose its statutory protection when the supervision provided is negligent or when it rises to the level of wilful and wanton misconduct. See Barnett, 171 Ill. 2d at 393; but see Pub. Act 90\u2014805, eff. December 2, 1998 (amending 745 ILCS 10/3\u2014108 (West 1994)).\nHad Blake and the volunteer lifeguard left the pool area while Tiffany was in the water, the facts would fall within Blankenship, 269 Ill. App. 3d at 424: \u201c[t]his was not mere inattention or a momentary lack of vigilance; it was a complete absence of supervision.\u201d In that case, there would be no \u201csupervision.\u201d\nThe facts here are less severe than those in Barnett, where the lifeguards ignored pleas to help a 10-year-old who hit his head on the diving board and sank to the bottom of the pool: \u201cHowever, the lifeguards dismissed their pleas and failed to respond, saying that they did not see anyone fall.\u201d Barnett, 171 Ill. 2d at 383.\nBlake was at the pool, supervising the swimming team tryouts. A lapse of attention from Tiffany to another swimmer does not change Blake\u2019s supervisory status. There is no fact issue about that.\nCONCLUSION\nBecause the Board is entitled to absolute immunity under section 3\u2014108, we affirm the trial court\u2019s grant of summary judgment.\nAffirmed.\nSOUTH, EJ., and HALL, J., concur.\nWe note the Illinois General Assembly amended section 3\u2014108 in 1998 to exclude wilful and wanton conduct from the scope of its immunity. See Pub. Act 90\u2014805, eff. December 2, 1998 (amending 745 ILCS 10/3\u2014108 (West 1994)).", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Robert W Karr & Associates, Ltd., of Chicago, for appellant.", "Board of Education Law Department, of Chicago (William A. Morgan, of counsel), for appellee." ], "corrections": "", "head_matter": "VERONICA ANN DIXON, as Special Adm\u2019r of the Estate of Tiffany Dixon, Deceased, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u201498\u20143216\nOpinion filed March 31, 1999.\nRobert W Karr & Associates, Ltd., of Chicago, for appellant.\nBoard of Education Law Department, of Chicago (William A. Morgan, of counsel), for appellee." }, "file_name": "0744-01", "first_page_order": 762, "last_page_order": 768 }