This is another in a series of articles on recently reported court decisions with emphasis on Illinois cases. This column also is used to answer readers' questions on law related topics in parks and recreation. Inquiries should be identified as such and mailed to the IAPD offices at 217 E. Monroe St., Springfield, IL 62701.

RECREATION LAW UPDATE

By James C. Kozlowski, J.D.

Inadequate Warning Signs At An Illinois Lake Prompt $1.3 Million Judgment

In the case of Davis vs. United States, 716 F.2d 418 (1983), the plaintiff, a 23-year-old university student, was injured while diving into Devil's Kitchen Lake in the Crab Orchard National Wildlife Refuge. Plaintiff broke his neck and was rendered a quadraplegic when he dove head first onto a rock outcropping which was about eighteen inches below the surface of the lake. Plaintiff sued the United States for damages under the Federal Tort Claims Act. Under this act, the federal court applied the substantive law of the jurisdiction where the injury occurred, Illinois.

The federal district court established plaintiff's damages at $4,047,000. In a pure comparative negligence jurisdiction, like Illinois, plaintiffs award was reduced by the percentage attributable to his own negligence. In this instance, plaintiff was found 75% negligent in causing his own injury and the United States 25% negligent. Consequently, the award against the United States was $1,012,000. On appeal, the plaintiff argued that he was entitled to more than 25%, if not the full amount, of his damages. The United States also appealed, contesting any liability in this case. The United States Court of Appeals, Seventh Circuit, issued its opinion on August 18, 1983.

According to the appeals court, there had been five diving accidents at another lake in the wildlife refuge during the preceding nine years. These accidents included one fatality and two instances of quadraplegic injuries. Subsurface rocks posed a similar hazard in Devil's Kitchen Lake. As a result, the government prohibited swimming in this lake. However, one beach at the end of the lake remained open to swimming.

Entrance roads at the wildlife refuge leading to the lake were posted with signs of moderate size reading, "No Swimming in Devil's Kitchen Lake" with a smaller sign below reading, "No Diving." As described by the appeals court: "Neither the size nor the color of the signs (white on blue) indicated danger, and there was no reference to the subsurface rocks or to any other possible hazard to a swimmer or diver — or, for that matter, to the fact that swimming was permitted at the beach." Rangers explained the danger and issued citations to those who violated the swimming/diving prohibition in the lake. The government also publicized the prohibition in the local media.

Plaintiff maintained that he did not see the signs when he entered the wildlife refuge by car with three friends. When the group approached the lake, "[t]here was no one in the water and no indication that it was an authorized swimming area." The lake appeared clear, but the glare from the sun made it impossible to determine the depth or condition of the bottom. Plaintiff was injured when he took a running dive and "while in the air [he] Davis dropped his arms to his side."

In the opinion of the appeals court, the danger in this instance was "not obvious." As described by the court:

"Although the shoreline is rocky, the lake looks deep and there is no indication that there be sinister stilettoes jutting from its bottom." As a result, the court found that "the government was at least negligent in failing to warn the public of the danger of the subsurface rocks more effectively than it did."

The "No Swimming" sign was not much good as a warning of danger; the prohibition it laconically announced could just as well have been intended to protect the lake from swimmers as vice versa. The "No diving" sign was a little better — for what could be its purpose but to warn of danger? — but still left too much to the imagination. For rangers to give oral warnings to people they caught swimming or diving was fine as far as it went, but it did Davis no good, for no ranger saw these young men swimming; nor had they gotten the message by word of mouth from fellow students who had been caught, or from the occasional radio spots or occasional notices in the campus newspaper.

Given "the history at Crab Orchard Lake [which] showed that people were diving despite the prohibition against swimming and diving and were getting seriously hurt doing so," the appeals court found a greater burden of precaution was warranted.

It would not have cost much to amend the "No Diving" sign to add "Danger: Subsurface Rocks," and to have posted these signs where swimmers could be expected, such as the gravel widened spot where Davis and his friends parked their car, as well as the entrances to the Refuge. Of course the cheapness of a precaution is not the only consideration in deciding whether its omission is negligent; the benefit from the precaution must be commensurate. ... If they had been posted and had prevented this accident, their benefits would have been measured in the millions of dollars and their costs in the thousands or less.

According to the appeals court, plaintiff was a trespasser.

The fact that he may not have known he

Illinois Parks and Recreation 33 March/April 1984

was a trespasser is irrelevant. ... Although the signs the government posted may not have been very good as warning signs, they were unequivocally prohibitory, and thus prevent Davis (whether or not he saw them) from claiming the status of an implied invitee. ... An invitee loses his status and becomes a trespasser by going to a portion of the premises to which his invitation does not extend.

Traditionally, no affirmative duty of care was owed to a trespasser; "the only duty of landowner to a trespasser was not to set traps for him." However, in the opinion of the court, trespassing is no longer a complete defense to negligence; "the status of trespasser ... is just one factor in the comparison of fault." As a result, "the modern common law of Illinois makes the landowner liable for a 'willful and wanton' injury to a trespasser."

As described by the court, the majority of courts find "only a shade of difference between willfulness and wantonness on the one hand and negligence on the other." Similarly, the Illinois Appellate Court in the case of Latimer v. Latimer 66 Ill. App.3d 685, 384 N.E.2d 107 (1978) "used as the test of willful and wanton the formulation in the Restatement (Second) of Torts § 342 (1965) of the landowner's duty of care toward licensees. According to the appeals court, Latimer defines "willful and wanton" as it relates to the landowner's duty of care to trespassers as well as licensees.

This formulation [of "willful and wanton" under § 342 of the Restatement] makes the landowner liable for an injury caused by a condition on the land if he "knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and ... he fails ... to warn the licensees of the condition and the risk involved. . . .

As a result, the appeals court concludes that this definition of willful and wanton "describes our case perfectly ... on the effect of posting signs that do not warn of danger."

Further, the appeals court found that the federal government had breached its duty of care owed to a trespasser under § 335 of the Restatement (Second) of Torts. As described by the court, § 335 provides the following:

A possessor of land who knows . . . that trespassers constantly intrude upon a limited area of his land, is subject to liability for bodily harm caused to them by [a highly dangerous] artificial condition on the land, if ... the condition ... is of such a nature that he has reason to believe that such trespassers will not discover it, and . . . [he] has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

In this instance the director of the wildlife refuge described the lake before the accident as "a man-made impoundment creating a hazardous environment for swimming and diving. " The appeals court agreed with this characterization, referring to the lake as "very hazardous." According to the court: "Altering nature in this fashion created an artificial condition . . . the government was well aware that trespassers constantly intrude, yet it failed to take the reasonable care to warn trespassers of the risk."

The appeals court also considered "the question of Davis' own negligence" in causing his injuries. According to the court: "To dive from the shore of a lake that has not been marked as safe for diving is negligence per se unless the diver has taken careful soundings of the depth of the lake at the point where he will hit the water, which Davis had not done." The appeals court, therefore, agreed with the trial court that Davis was negligent.

Given Davis' negligence, the appeals court then considered "whether his negligence can be compared with the willful and wanton misconduct of the government." Traditionally, "a finding that the defendant was guilty of willful and wanton misconduct overrode the plaintiffs contributory negligence and allowed him to collect his full damages." However, in the opinion of the court, comparative negligence in Illinois allows the courts "to compare different degrees of negligence" especially where, as in this case, "willful and wanton is a term of art denoting a merely higher degree of negligence." As a result, the appeals court chose "to compare the parties' degrees of wrongdoing [in this case] . . . where both parties' negligence, not just the defendant's can be described as willful and wanton."

Finally, the appeals court considered "whether a reasonable trier of fact could have found Davis to be three times as blameworthy as the government (75 percent versus 25 percent." According to the appeals court, "[t]he government . . . had more information than Davis about the hazards of diving in Devil's Kitchen Lake." Although "Davis' conduct was . . . not minimally negligent but willful and wanton," in the opinion of the appeals court, "it does not follow that Davis' willfulness and wantonness was three times as great as that of the government." As a result, the appeals court reversed the judgment of the district court "insofar as it failed to award Davis more than one-fourth of the $4,047,000 damages that the parties agree is the proper measure of his injury."

It would be easy to uphold the district court's allocation of fault if the government were guilty of only minimal negligence. But since both parties were willful and wanton under Illinois law, the natural division of fault would have been 50-50; and giving all due deference to the district court's superior ability to make the comparative-negligence determination, we cannot find any basis in the district court's opinion or in the record for regarding Davis as having been more than twice as blameworthy as the government. This means that, at the most, he should bear two-thirds (not three-fourths), and the government one-third, of the cost of the accident.

The appeals court, therefore, remanded the case to the district court "for a new trial limited to the proper apportionment of the parties' fault, unless Davis, within 21 days of the receipt of our mandate by the district court, files a written election to accept one-third of the damages." One of the three circuit judges dissented, in part, from the opinion in this case; he would have affirmed the 75%-25% apportionment by the district court.

Life. Be In It.

Illinois Parks and Recreation 34 March/April 1984