Supervision: Willful and Wanton Misconduct

Article excerpt

Barnett v. The Zion Park District

Supreme Court of Illinois

665 N.E. 2d 808

April 16, 1996

The Port Shiloh swimming complex, owned and operated by the Zion Park District in Illinois, includes a pool referred to as the "deep" pool, another called the "south" pool, and a third called the "baby" pool. The deep pool is 75 feet long and 45 feet wide, and 3 feet deep at the shallow end and 11 feet deep at the deep end.

On June 9, 1990-the first day of the swimming season-11 lifeguards were on duty at the three swimming pools. Six guards were on duty at the deep pool, although the Illinois Department of Public Health regulations required only two or three. All six were certified by the American Red Cross in lifesaving, CPR, and first aid--in accordance with public health requirements--and they had received additional emergency training from the district. On June 9, they were actively overseeing and managing the deep pool.

According to the record, a 10-year-old boy named Travis was walking forward on a diving board at the deep pool when he slipped, fell back, hit his head on top of the board, and fell into the water, where he struggled and then sank to the bottom. At least two patrons alerted lifeguards to Travis's distress. Yet, the lifeguards dismissed these pleas and failed to respond, saying that they did not see anyone fall.

After Travis was in the water for approximately two or three minutes, a pool patron finally dove in and brought him up to the surface. Lifeguards then pulled Travis out of the water and unsuccessfully administered CPR. Travis died a short time later.


The plaintiff alleged that the district had engaged in the following willful and wanton misconduct: "Failed to initiate lifesaving procedures to rescue Travis after being told by [other] patron[s] of the pool that he had slipped, fallen...struck his head on a diving board, and dropped into the water... [and] that [he] was drowning." The district argued that it was not liable because "(1) it did not owe Travis any legal duty, and (2) it was immune from liability under the Tort Immunity Act."


During the initial trial, the district moved for summary judgment, which was granted. The plaintiff appealed this decision, but the appeals court affirmed it. Upon further appeal, the Illinois Supreme Court indicated that "the Tort Immunity Act does not impose on a municipality any new duties. Rather, the Act merely codifies those duties existing at common law." Thus the court must look to the common law and other statutes to determine whether the district owed Travis a legal duty. If there is no legal duty owed, then there cannot be a breach of duty.

In regard to duty, the supreme court agreed "with the appellate court that the district owed Travis a common law duty of reasonable care. Unquestionably, at common law a private operator of a public swimming pool or public bathing resort would have owed Travis a duty to make reasonable provisions and to take reasonable precautions for his safety. …