{ "id": 4260486, "name": "DEBORAH FRAYNE, Special Adm'r of the Estate of Kenneth J. Frayne, Deceased, Plaintiff-Appellant, v. DACOR CORPORATION et al., DefendantsAppellees", "name_abbreviation": "Frayne v. Dacor Corp.", "decision_date": "2005-11-29", "docket_number": "No. 3\u201404\u20140860", "first_page": "575", "last_page": "582", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 575" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "778 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 462", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521897 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "464" }, { "page": "466" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0462-01" ] }, { "cite": "690 N.E.2d 1067", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 801", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35403 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0801-01" ] }, { "cite": "798 N.E.2d 757", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 462", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718944 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "469" }, { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0462-01" ] }, { "cite": "649 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483569 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0107-01" ] } ], "analysis": { "cardinality": 766, "char_count": 16120, "ocr_confidence": 0.773, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14259904728036268 }, "sha256": "ef3d02232ce3258398b1747617a619c1ab63c221911d1c8e6cfeabac9b71c1f3", "simhash": "1:2ff7be0e7f9f7459", "word_count": 2631 }, "last_updated": "2023-07-14T16:28:25.526171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEBORAH FRAYNE, Special Adm\u2019r of the Estate of Kenneth J. Frayne, Deceased, Plaintiff-Appellant, v. DACOR CORPORATION et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE SCHMIDT\ndelivered the opinion of the court:\nThis case arises out of the tragic death of Channahon firefighter Kenneth Frayne as Frayne trained to rescue others. Plaintiff, Deborah Frayne, as special administrator of the estate of her husband, Kenneth Frayne, filed this action seeking to recover damages following her husband\u2019s drowning in a lake at the Coal City Area Club (the Club). Kenneth Frayne was a scuba diver for the Channahon Fire Protection District, participating in a multiagency dive rescue training exercise at the time of his drowning. The defendants relevant to this appeal are the various fire protection districts and employees thereof who also participated in the exercise. The defendants moved for summary judgment claiming statutory immunity. The circuit court of Grundy County granted defendants\u2019 motion. Plaintiff appeals.\nBACKGROUND\nThe training exercise mentioned above took place on October 13, 2001. In addition to Mr. Frayne from the Channahon Fire Protection District (Channahon), other area rescue teams represented in the training exercise included the Coal City Fire Protection District (Coal City), the Braidwood Fire Department and Braidwood Fire Protection District (Braidwood), and the Minooka Fire Protection District (Mi-nooka).\nAt issue in this appeal are counts V through XVI of plaintiff\u2019s third amended complaint. These counts are directed against Minooka, Braidwood, Craig Kasher (a Braidwood employee), Coal City, and Shawn Anderson (a Coal City employee).\nPlaintiff alleges that Minooka purchased and became owner of the scuba diving equipment used by Mr. Frayne during the exercise. Plaintiff continues that Minooka was, in fact, supervising and controlling the lake as part of its participation in the training exercise. Plaintiff further alleges that the fire protection entities had an agreement among themselves to participate in dive training exercises on a regular basis.\nPlaintiff claims that pursuant to that agreement, Coal City requested and obtained permission from the Club to \u201cuse, occupy and control a part of the lake and its adjacent land to conduct the multi-agency dive training exercise.\u201d Plaintiff maintains that these entities controlled every facet and imaginable detail of the training exercise. Plaintiff argues that it was, therefore, the duty of these entities to exercise a reasonable degree of care and caution with regard to, not only the equipment used in the dive, but the parameters, conditions, and rules of the exercise itself. Plaintiff alleges that the breach of one or more of these duties proximately caused the death of plaintiff\u2019s decedent.\nDefendants claim that as local public entities or employees they are immune from liability for the drowning of plaintiffs decedent in a body of water over which they had no control as defined by the statute. 745 ILCS 10/3 \u2014 110 (West 2002).\nJody Ritz is the Club manager. The Club is run by its officers and a 13-person board. The Club charges an annual fee and has various activities including fishing, boating, and camping. There are no scuba activities or lessons allowed at the Club apart from the dive training exercises conducted by the fire protection districts. The Club covers 1,000 acres and includes a main lake. The Club is primarily accessed by key at the front entrance which opens an electronic gate.\nShawn Anderson was one of the 13 board members of the Club. At the October 9, 2001, monthly meeting, the board discussed using the Club\u2019s facilities for a dive training exercise. The board agreed to allow the firefighters to use the lake for the exercise. There was no written contract between the Club and the firefighters and no fee was charged for the use of the lake.\nThe exercise took place on October 13, 2001. Ritz was at the Club during the time of the exercise and spent approximately 40 minutes in the vicinity where the exercise was occurring. No other club members were in the area where the exercise was taking place and Ritz was unaware of any interaction between other members of the Club and the divers.\nAccording to Ritz, the firefighters determined which particular members of the municipalities would take part in the exercise. 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 responsible for cleaning up when they left. The Club put no restrictions on the divers concerning the type of dive training exercises they would perform or how long the exercise would last. No one from the Club gave any order or direction to the firefighters. No one from the Club controlled the activities of the dive team or supervised what they were doing.\nEach of the participating fire protection districts had a dive coordinator of its own who took part in the training exercise. Ed Wro-bel and decedent, Kenneth Frayne, participated from Channahon. Rich Arnold and Mike Thompson participated from Minooka. Coal City was represented by Shawn Anderson, Tony Mauro, Willie Wrenn, and Tim Schulz. Craig Kasher was the only representative from Braid-wood. Ed Wrobel testified in his deposition that the Coal City dive team was responsible for safety precautions with respect to activities that were being conducted in the lake.\nCraig Kasher from Braidwood stated that the exercise was one of several \u201ccross trainings\u201d in which Channahon, Braidwood, and Coal City routinely participate. Kasher stated that the \u201cdive training exercise was supervised by Shawn Anderson of the Coal City Fire Protection District.\u201d Anderson would provide direction with regard to each drill. Kasher further remarked that he did not know who was controlling, supervising, managing, operating, or maintaining the lake in the area where the dive was being conducted at the time it was being conducted.\nRichard Arnold of Minooka also participated in the dive. It was Arnold who supplied the allegedly defective scuba regulator to Kenneth Frayne. Arnold stated that he did not know who was controlling, supervising, managing, operating, or maintaining the lake at the time of the dive. In his opinion, Shawn Anderson was supervising the dive activities that were being conducted in the water that day.\nShawn Anderson is a lieutenant and dive coordinator for Coal City. He has been a board member of the Club since 1996. As a rule, scuba diving is prohibited at the Club apart from dive training exercises. Anderson noted that since the training exercise at issue included entities other than Coal City, it was necessary to obtain specific board approval for use of the Club. Anderson brought a request to the board and received its permission to use the Club. Similar requests had been made in the past and permission was received on prior occasions. According to Anderson, no restriction of any kind was imposed on the firefighters by the Club.\nAnderson claimed that the general idea of the dive was to have the divers search for and locate a sunken boat in which mannequins where placed. No restrictions were placed on the divers as to the area of the lake that they could search. Like all others that were at the lake that day, Anderson testified that he did not see anyone out on the water other than the dive participants.\nIt was Anderson\u2019s belief that Jody Ritz was supervising the lake that day. He based this belief on his knowledge that Ritz is the Club manager and was present at the Club during the exercise. Anderson admitted that he controlled the dive activities \u201cto a limited extent as the dive training coordinator.\u201d Anderson stated that a \u201cdiver below\u201d flag was placed at the site where the training was being conducted. This flag consisted of a 3-foot-round inner tube and a DA-foot flag that sticks up. The purpose of the flag was \u201ca precaution or warning sign to let other boaters know that we had divers below.\u201d\nThe defendants mentioned above filed a joint motion for summary judgment, claiming statutory immunity from any liability arising out of decedent\u2019s injuries, which was ultimately granted by the circuit court. This appeal followed.\nANALYSIS\nWe review an order granting summary judgment de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 649 N.E.2d 1323 (1995). Summary judgment is a drastic means of disposing of litigation and is only appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Espinoza, 165 Ill. 2d at 113. On a motion for summary judgment, it is the movant who bears the burden of persuasion and the initial burden of production. Hall v. Flowers, 343 Ill. App. 3d 462, 798 N.E.2d 757 (2003). Furthermore, we must consider the affidavits, depositions, admissions, exhibits, and pleadings in the record in a light most favorable to the nonmoving party. Hall v. Flowers, 343 Ill. App. 3d at 469. Defendants who move for summary judgment may meet their initial burden of production by either: (1) affirmatively showing that some element of a cause of action must be resolved in their favor; or (2) demonstrating that plaintiff cannot produce evidence necessary to support the plaintiffs cause of action. Hall v. Flowers, 343 Ill. App. 3d at 470. If the defendants satisfy their initial burden of production, the burden shifts to the plaintiffs to present some factual basis that would arguably entitle them to a favorable judgment. Rice v. AAA Aerostar, Inc., 294 Ill. App. 3d 801, 690 N.E.2d 1067 (1998).\nDefendants filed a \u201cjoint motion for summary judgment\u201d pursuant to section 2 \u2014 1005 of the Code of Civil Procedure. 735 ILCS 5/2\u2014 1005 (West 2004). The joint motion alleges that section 3 \u2014 110 of the Local Governmental and Governmental Employees Tort Immunity Act (the Immunity Act) (745 ILCS 10/3 \u2014 110 (West 2002)) provides them with immunity from liability for plaintiffs injuries.\nAffidavits attached to the motion all state that the lake was not owned, supervised, maintained, operated, managed, or controlled by the affiants\u2019 respective fire departments or fire protection districts. Plaintiff filed a motion to strike these affidavits which was granted by the circuit court prior to its ruling on defendants\u2019 motion for summary judgment. This ruling is not contested by defendants on appeal.\nPlaintiff argues that the trial court erred in finding as a matter of law that the municipal entities and their employees were entitled to immunity where the competent evidence before the court failed to establish that defendants were not supervising or controlling the lake in which the fatal dive occurred. Plaintiff correctly notes that section 3 \u2014 110 of the Immunity Act states as follows:\n\u201cNeither a local public entity nor a public employee is liable for any injury occurring on, in, or adjacent to any waterway, lake, pond, river or stream not owned, supervised, maintained, operated, managed or controlled by the local public entity.\u201d 745 ILCS 10/3\u2014 110 (West 2000).\nPlaintiff correctly observes that if defendants engaged in any of the six enumerated activities specified in section 3 \u2014 110 (owned, supervised, maintained, operated, managed, or controlled), immunity under the Act would not attach. However, plaintiff avers that the circuit court erred in finding as a matter of law that defendants did not supervise or control the lake at the time of the dive. We disagree.\nAfter reviewing the facts of this case as they were presented by the parties and the applicable law, Judge Peterson found that \u201ccontrol of the dive with supervision of the dive does not equal supervision of the body of water.\u201d The trial court based this ruling on McCoy v. Illinois International Port District, 334 Ill. App. 3d 462, 778 N.E.2d 705 (2002). In McCoy, the plaintiffs decedent was a longshoreman assisting the untying of a docked vessel when he fell into the Calumet River and drowned. The defendant port district was responsible for the maintenance of the facilities on the properties near the water. Defendant also collected fees for use of those facilities and supplied fresh water to docked vessels. Furthermore, the port district maintained the sea/dock wall from where plaintiff fell. McCoy, 334 Ill. App. 3d at 464.\nThe McCoy plaintiff admitted that the defendant did not \u201cown\u201d the Calumet River in which the decedent drowned, but argued that section 3 \u2014 110 of the Immunity Act should not attach since the defendant \u201cplays a role in the maintenance, control, supervision and management of the river by conducting business on [itj and through its responsibility for the sea walls that contain the river.\u201d McCoy, 334 Ill. App. 3d at 466. Noting that the plain language of section 3 \u2014 110 is unambiguous, the appellate court in McCoy agreed with the lower court\u2019s finding that although the defendant maintained all the facilities surrounding the river, such actions did not equate to owning, supervising, maintaining, operating, managing, or controlling the body of water which is the river. McCoy, 334 Ill. App. 3d at 468. Judge Peterson took note of this distinction when concluding that although the defendants may have controlled and supervised the dive, they did not control or supervise the lake.\nEven when viewing the facts in the light most favorable to the plaintiff, there is no evidence suggesting that defendants could exert any minimal control over the lake. As the trial court noted, the firefighters were nothing more than guests. The uncontradicted deposition of Ritz makes it clear that defendants had no right to grant or deny anyone access to the lake or any portion of it. In fact, for defendants to conduct this exercise, they were required to receive permission from the board of the Club.\nWhile the firefighters\u2019 movement on the lake was seemingly unrestricted, the record reveals that they had no authority to control the lake whatsoever. Ritz stated:\n\u201cThey could use our lake, but they can\u2019t cord it off. Our members have the right to any waters out there and the fire department cannot rope it off or say they can\u2019t come in here. The members are the ones that are paying for all the club and they get the use of all the waters all the time.\u201d\nRitz\u2019s statements regarding the firefighters\u2019 inability to deny access to the lake to anyone are buttressed by Anderson\u2019s testimony regarding the firefighters\u2019 use of the boat ramp. Anderson stated it was necessary for the firefighters to move their vehicles away from the boat ramp \u201cbecause we can\u2019t block entrance if somebody wanted to come out there.\u201d\nWhile the plaintiff notes that defendants, or at least some of them, controlled and supervised almost every aspect of the dive itself, including everything from what type of equipment would be used to who the dive partners would be, the trial court correctly found that the defendants, as a matter of law, did not supervise, control, or maintain the lake and, therefore, are immune under the plain language of the Immunity Act. As such, we hold the circuit court of Grundy County correctly granted defendants\u2019 joint motion for summary judgment pursuant to section 3 \u2014 110 of the Immunity Act and section 2 \u2014 1005 of the Code of Civil Procedure.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Grundy County is affirmed.\nAffirmed.\nBARRY and LYTTON, JJ., concur.", "type": "majority", "author": "JUSTICE SCHMIDT" } ], "attorneys": [ "Robert J. Cooney (argued), of Cooney & Conway, of Chicago, for appellant.", "W. Anthony Andrews (argued) and James L. DeAno, both of Norton, Mancini, Weiler & DeAno, of Wheaton, for appellee Minooka Fire Protection District.", "Charles E. Hervas and Sara M. Cliffe, both of Hervas, Sotos, Condon & Bersani, P.C., of Itasca, for appellees Braidwood Fire Department, Braidwood Fire Protection District and Craig Kasher.", "Kimberly Jansen (argued), Steven M. Puiszis, Thomas R. Mulroy, and Corinne C. Heggie, all of Hinshaw & Culbertson, L.L.P., of Chicago, for appellees Coal City Fire Protection District and Shawn Anderson." ], "corrections": "", "head_matter": "DEBORAH FRAYNE, Special Adm\u2019r of the Estate of Kenneth J. Frayne, Deceased, Plaintiff-Appellant, v. DACOR CORPORATION et al., Defendants-Appellees.\nThird District\nNo. 3\u201404\u20140860\nOpinion filed November 29, 2005.\nRobert J. Cooney (argued), of Cooney & Conway, of Chicago, for appellant.\nW. Anthony Andrews (argued) and James L. DeAno, both of Norton, Mancini, Weiler & DeAno, of Wheaton, for appellee Minooka Fire Protection District.\nCharles E. Hervas and Sara M. Cliffe, both of Hervas, Sotos, Condon & Bersani, P.C., of Itasca, for appellees Braidwood Fire Department, Braidwood Fire Protection District and Craig Kasher.\nKimberly Jansen (argued), Steven M. Puiszis, Thomas R. Mulroy, and Corinne C. Heggie, all of Hinshaw & Culbertson, L.L.P., of Chicago, for appellees Coal City Fire Protection District and Shawn Anderson." }, "file_name": "0575-01", "first_page_order": 593, "last_page_order": 600 }