dissenting:
I must respectfully dissent from the decision modified on denial of rehearing for several reasons although the opinion is thoughtfully crafted and persuasive.
I believe that the doctrine of open and obvious still controls in cases where an adult plaintiff dives into a natural body of water and is thereby injured when he hits bottom. The majority correctly observes that the open and obvious doctrine has exceptions and ought not to be slavishly applied. Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223; but see Mt. Zion State Bank & Trust v. Consolidated Communications, Inc. (1994), 267 Ill. App. 3d 402, 641 N.E.2d 1228 (questioned the continued validity of the doctrine of open and obvious).
However, it is precisely this genre of cases to which it is still applicable. Dowen v. Hall (1989), 191 Ill. App. 3d 903, 548 N.E.2d 346, sets forth the law in Illinois and I fail to see any genuine difference between the diver in Dowen and the diver in the case at bar. In the instant case, the majority rests its decision upon the fact that there are no warning signs alerting the plaintiff to the risks attendant to diving into unknown waters; however, if it is an open and obvious condition of the land, then no warning should be required.
A similar situation exists in Smith v. Chicago Park District (1995), 269 Ill. App. 3d 812, where the majority determines that there is a question of fact as to whether a ladder near the place of diving was so seductive to the plaintiff that an exception to the open and obvious doctrine was recognized.
In Schellenberg v. Winnetka Park District (1992), 231 Ill. App. 3d 46, 596 N.E.2d 93, we distinguished Dowen merely because the plaintiff was a minor. Citing Dowen and Schellenberg, a recent first district decision observed: "While there is authority in the premises liability context which has held that risk to be open and obvious to adults [citation], we cannot reach that conclusion as a matter of law with respect to minors [citation].” (Klen v. Asahi Pool, Inc. (1994), 268 Ill. App. 3d 1031,1044.) Although Klen imposed liability on behalf of the minor plaintiff, the clear import of the case is that an adult plaintiff would have suffered a different fate.
Here, plaintiff is an adult who understood, without further warning, the danger inherent in diving into a lake, the condition of the bottom of which is uncertain and unknown.
I am additionally concerned that all of this is love’s labor lost. Even if this case is returned to the trial court, it is most doubtful that plaintiff’s case could withstand a motion for directed verdict since liability must be seated upon defendant’s wilful and wanton conduct.
In 1986, the Illinois General Assembly amended the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Act) to provide:
"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 (West 1992).
The Act defines wilful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others.” 745 ILCS 10/1 — 210 (West 1992).
It is difficult to imagine that the conduct alleged by plaintiff is so egregious as to fall within the penumbra of wilful and wanton. Even if the failure to warn was negligence on the part of the defendant, the law recognizes a clear distinction between negligence and wilful and wanton conduct. (Ziarko v. Soo Line R.R. Co. (1994), 161 Ill. 2d 267, 641 N.E.2d 402; Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 593 N.E.2d 522.) Thus, even if I were to concede that the defendant failed to act with reasonable care, the facts do not establish the kind of ill will, intention to cause harm or conscious indifference to the safety of plaintiff to establish a factual basis for wilful and wanton conduct. Generally, this determination is reserved for the trier of fact. (E.g., Brown v. Chicago Park District (1991), 220 Ill. App. 3d 940, 581 N.E.2d 355.) However, based upon the record in the present case, there are no questions of fact which, if resolved in the plaintiffs favor, would sustain a jury’s determination of wilful and wanton. See Castaneda v. Community Unit School District No. 200 (1994), 268 Ill. App. 3d 99 (affirmed summary judgment to defendants, finding that the uncontested facts were insufficient as a matter of law to constitute wilful and wanton conduct).
Additionally, the record shows a number of affirmative steps taken by the defendant to insure a safe environment, hardly the conscious indifference required upon which to predicate an action against a public entity in the maintenance of recreational facilities.
For these reasons, I must respectfully dissent.