FIFTH DIVISION

                                         Septem,ber 14, 2001  		 							

No. 1-99-3704

DERRICK ROBINSON, Successor Independent

Adm'r of the Estate of Ralph J. Robinson,

a Minor, Deceased,        

		Plaintiff-Appellee,

	v.

THE CHICAGO PARK DISTRICT, an Illinois

Municipal Corporation, 

		Defendant-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Deborah M. Dooling,

Judge Presiding.

	PRESIDING JUSTICE QUINN delivered the opinion of the court:

	In March of 1994 Delores Robinson filed a wrongful death and survival action on behalf of her son Ralph Robinson, a minor, deceased,

against the defendant, Chicago Park District.  The suit arose from the

accidental drowning of her son during an open swim at the defendant's

pool.  During the pendency of the action, Delores Robinson passed away

and the plaintiff, Derrick Robinson, was substituted as successor

administrator.  

	A jury found the defendant liable for negligence and returned a

verdict in favor of the plaintiff in the amount of $1,550,000.  The

court entered judgment on the verdict on May 4, 1999.  The defendant filed a posttrial motion for judgment notwithstanding the verdict or,

in the alternative, for a new trial.  The court denied defendant's motion and defendant now timely appeals.

	On appeal, defendant alleges that it has statutory tort immunity

under Section 3-108(b) of the Governmental and Governmental Employees

Tort Immunity 745 ILCS 10/3-108(b)(West 1994), and therefore, the trial

court committed reversible error by not directing a verdict in favor of

the defendant.  Defendant additionally alleges that the amount of

damages is not supported by the evidence.

	For the following reasons, we reverse.

I.  BACKGROUND

	On the afternoon of June 16, 1993, Ralph Robinson and three of his

friends went to the Carver Park pool to go swimming.  Carver Park pool,

located at Carver Park, 939 East 132nd Place in Chicago, is owned and

operated by the defendant.  The pool is enclosed by a glass structure

and ranges in depth from 11 feet at its deepest to 3 feet at its

shallowest.

	At approximately 3 p.m. Ralph and his friends arrived at Carver

Park and went into the locker room to change into their swimsuits.  On

that afternoon, the pool had a posted open swim in progress and had two

lifeguards, Charles Baskin and Kenneth Shores, scheduled to be on duty. 

Although Steve Davis, senior lifeguard, was at a meeting and not present

on the pool deck, both Baskin and Shores were present on the pool deck

that afternoon.  After exiting the locker room, Ralph was given, and

passed, a lap test in order to swim in the deep end of the pool.  Baskin

administered the test, which consisted of swimming two laps in the deep end and treading water.  Ralph proceeded to the deep end of the pool,

where he jumped off the diving board, treaded water, swam to the side

and exited the pool.  

	The relevant facts that led up to Ralph's drowning were relayed to

the jury through the testimony of occurrence witnesses James Griffin,

one of Ralph's friends who had accompanied him to the pool, and

lifeguard Charles Baskin.

	Griffin testified that he arrived at the pool with Ralph Robinson,

Darryl Harris and Kevin McClenton at approximately 3:30 p.m. that

afternoon.  Griffin stated that he and his friends had been swimming at

the Carver pool on previous occasions .  Griffin testified that after

showering and changing in the men's locker room he proceeded out to the

pool deck and entered the shallow end of the pool alone.  Griffin stated

that there were two lifeguards on the pool deck at that time.  At that

time, Griffin saw one of the lifeguards on the telephone and one of the

lifeguards sitting on a steel bench talking to some people.  Shortly

after entering the pool, Griffin saw Ralph jump off the diving board

into the deep end of the pool, swim to the edge, and then exit the pool. 

Griffin stated that he saw Ralph jump off the diving board a second

time.  Griffin testified that he was going under water while in the

shallow end and was not watching the activities of the lifeguards at all

times.

	Griffin testified that he heard Darryl Harris, one of the other

boys who had accompanied them to the pool, yelling his name from the

deep end of the pool.  Griffin saw Harris standing on the diving board and pointing to the water.  When Griffin walked to the deep end, he saw

Ralph lying on the bottom of the pool.  Griffin testified that he began

yelling for a lifeguard and waving his hand.  Harris jumped in but was

unable to retrieve Ralph.  Griffin testified he and Harris were both

yelling and waving for a lifeguard at this point.  Griffin stated that

Baskin looked over in their direction but failed to respond.  Griffin

testified that eventually Baskin dove into the pool and retrieved Ralph. 

Baskin began doing cardiopulmonary resuscitation (CPR) while Shores came

running over with an oxygen tank.

	Baskin testified that he had been a lifeguard for the Chicago Park

District for 11 years.  He stated at trial that he was certified from

the American Red Cross and the Chicago Park District in life guarding

at the time of the incident.  Baskin testified  that on June 16, 1993

he was working the 1 p.m. to 10 p.m. shift at the Carver Park pool. 

Baskin testified that there was a posted open swim that day from 3 p.m.

to 5:30 p.m.  He testified that he had positioned himself on a steel

bench which was located at the drop off point in the pool to observe

"all of the shallow and all of the deep."  Baskin maintained that, while

he may have answered questions or explained rules to swimmers, he was

not talking to anyone for any length of time while sitting on the bench. 

	Baskin testified that he remembered giving Ralph his lap test that

day.  Baskin knew Ralph because he was a regular at the Carver Park pool

and a good swimmer.  Baskin testified that after Ralph passed the swim

test, he saw him jump off the diving board into the deep end of the

pool.  Baskin stated that he saw Ralph jump off the board, go to the bottom of the pool, come up and tread water a couple of times.  Baskin

testified that after the last time he saw Ralph jump in, he did not know

he was in distress until, while walking toward the deep end and making

his 10-second count, he saw Ralph lying on the bottom of the pool. 

Baskin testified that he did not see Ralph in distress on the surface

of the water or hear him, or anyone else, calling out for help at any

point.  Baskin then dove into the water and brought Ralph to the

surface.  Baskin testified that Ralph was not breathing and had no

pulse.  At this point Shores ran up with a resuscitator and both men

began CPR on Ralph.  Ralph was resuscitated but died several days later

at Christ Hospital.

PROCEDURAL HISTORY

	Prior to trial, on May 8, 1996, the defendant filed a motion for

summary judgment.  The defendant contended that pursuant to the decision

rendered three weeks earlier by the Illinois Supreme Court in Barnett v. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996), there were no genuine issues of material fact and therefore summary judgment

was appropriate.  Judge James Heyda heard the argument and denied

defendant's motion on the grounds that there were material fact issues

as to where the lifeguards were positioned.  Defendant's motion for

reconsideration or, in the alternative, certification of the question

for interlocutory appeal was also denied by Judge Heyda.  Defendant

sought to renew its motion for summary judgment before the trial court. 

The trial court refused to consider the motion because of Judge Heyda's previous ruling.  At the close of all the evidence the trial judge

refused to direct a verdict in favor of the defendant.  The jury

returned a verdict in favor of the plaintiff in the amount of

$1,550,000. Defendant filed a posttrial motion for judgment

notwithstanding the verdict or, in the alternative, for a new trial. 

The motion was denied.  Defendant now appeals.

II.  ANALYSIS

	Defendant maintains that the trial court committed reversible error

in refusing to direct a verdict in its favor.  Defendant seeks judgment

notwithstanding the verdict or, in the alternative, a new trial. 

"[V]erdicts ought to be directed and judgments [notwithstanding the

verdict] entered only in those cases in which all of the evidence, when

viewed in its aspect most favorable to the opponent, so overwhelmingly

favors movant that no contrary verdict based on that evidence could ever

stand."  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967).  A motion for directed verdict should be granted

where there is no evidence demonstrating a substantial factual dispute

or where the assessment of the credibility of witnesses or the

determination of conflicting evidence is not decisive to the outcome. 

Maple v. Gustafson, 151 Ill. 2d 445, 453-54, 603 N.E.2d 508 (1992).  In recognition that trial courts are not to weigh evidence, resolve

conflicts in evidence, or assess the credibility of witnesses, a ruling

on a motion for directed verdict is subject to de novo review.  Dunlap v. Alcuin Montessori School, 298 Ill. App. 3d 329, 340, 698 N.E.2d 574 (1998).

A. 	STATUTORY IMMUNITY

	Defendant argues that at the close of all the evidence "there were

no questions of fact left for the jury to decide that would serve to bar

the Park District's statutory immunity under [section] 3-108(b) or that

would impose liability on the Park District."  Section 3-108(b) (745

ILCS 10/3-108(b)(West 1994) states:

		"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."

Specifically, defendant maintains that under Barnett, the Illinois Supreme Court has unequivocally held that a public entity is immune from

negligence and willful and wanton conduct when it has lifeguards

positioned on the pool deck.  In this case it was an uncontested fact

that there were two lifeguards on deck, and therefore, immunity was

triggered and a directed verdict was proper.

	Plaintiff argues that Blankenship v. Peoria Park District, 269 Ill. App. 3d 416, 647 N.E.2d 287 (1994) carves out an exception to the

blanket immunity provided under Barnett.  Specifically, plaintiff maintains that when the conduct of the lifeguards constitutes a

"complete lack of supervision" the Act does not apply.  Therefore,

according to the plaintiff, it was proper to send the factual issue of

whether the lifeguards' conduct in this case constituted a complete lack of supervision to the jury.

	We hold that the trial court committed reversible error in denying

defendant's motion for a directed verdict.  The seminal case in Illinois

interpreting section 3-108(b) (745 ILCS 10/3-108(b)(West 1994) is

Barnett.  In Barnett, Travis, a 10-year old boy, drowned in a park district pool during a posted open swim.  As the court noted, there were

6 lifeguards on duty that were "actively overseeing, directing, and

managing the pool." Barnett, 171 Ill. 2d at 382-83.  The record revealed that Travis slipped while jumping off a diving board, hit his head and

fell into the water.  At least two patrons told lifeguards of Travis'

distress but the "lifeguards dismissed their pleas and failed to

respond."  Barnett, 171 Ill. 2d at 383.  It was a pool patron who eventually dove in and pulled Travis to the surface.  Barnett, as

special administrator of the estate of Travis, brought a wrongful death

and survival action against the Zion Park District.  The trial court

granted summary judgment in favor of the defendant.  On appeal, Barnett

argued that the case was improper for summary judgment and that although

lifeguards were on the pool deck, their supervision was so deficient

that the defendant failed to provide Travis with the "supervision" that

section 3-108(b) requires.

	The Illinois Supreme Court, in analyzing Barnett's claim,

disagreed.  First, the court noted that the case was appropriate for

summary judgment.  Barnett labeled the question of whether the

lifeguards provided "supervision" within the meaning of section 3-108(b)

as a question of fact.  The court stated this issue involves interpreting the Tort Immunity Act, "which is purely a matter of law and

appropriate for summary judgment."  Barnett, 171 Ill. 2d at 385; see Lane v. Titchenel, 204 Ill. App. 3d 1049, 1053, 562 N.E.2d 1194 (1990). Second, the court disagreed with Barnett's interpretation of section 3-

108(b).  "The legislature omitted from the plain language of section 3-

108 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."  Barnett, 171 Ill. 2d at 392, 665 N.E.2d 808.  In Barnett it was undisputed that 116 lifeguards were provided and were physically present.  The court noted

that Barnett's interpretation that the statute requires a particular

level of supervision would effectively nullify the statute.  "If section

3-108(b) immunized only nonnegligent conduct, then there would be no

need for immunity because the conduct would not be actionable in the

first place." Barnett, 171 Ill. 2d at 392. 

	The case at bar is directly analogous.  Plaintiff is essentially

making the identical argument that was made, and rejected, by the

plaintiff in Barnett.  Plaintiff claims that the conduct of the lifeguards, although present on the pool deck, rose to the level of a

complete failure to provide supervision.  Plaintiff is attempting to

limit the immunity granted under section 3-108(b) by reading a requisite

level of supervision into the statute.  The Illinois Supreme Court has

unequivocally declined to limit the immunity in such a way.  In this

case it was uncontroverted that two lifeguards were present on the pool

deck.  After defendant requested a special interrogatory which stated that at the time of the occurrence the defendant did have at least one

lifeguard on the pool deck, the trial court itself noted "this isn't an

issue***I would think the plaintiffs would stipulate that there's one

lifeguard***that's not an issue."  Therefore there was "supervision"

within the ambit of Barnett, and the defendant is entitled to immunity under section 3-108(b).

	Plaintiff relies wholly on the decision in Blankenship for the proposition that immunity is improper when the lifeguard's conduct

constitutes a complete lack of supervision.  In Blankenship, a case which we note predates Barnett, this court held that the defendant was not entitled to immunity under section 3-108(b) because the lifeguards

were off-duty, not physically present at the pool, and not in a position

to see the pool.  In that case, the plaintiff drowned during an "adult

swim" at a public pool.  There were three lifeguards on duty that day;

however, during the adult swim, all three of the lifeguards went into

a small adjacent room where they were unable to see the pool.  The park

district's rules stated that the lifeguards could use "adult swim" for

break time but one lifeguard must remain on duty.  The court stated

"[a]lthough three lifeguards were ostensibly on duty and were present

in the pool area, according to the complaint they were on a break and

were not in a position to observe the pool.  This was not mere

inattention or a momentary lack of vigilance; it was a complete absence

of supervision." Blankenship, 269 Ill. App. 3d at 424.

	The case at bar is directly distinguishable.  As stated previously,

the defendant provided two lifeguards who were present on the pool deck.  Charles Baskin and Kenneth Shores were on the pool deck, not in an adjacent room, when Ralph Robinson drowned.  Both the plaintiff and the

trial court apparently are interpreting Blankenship to create a broad exception to Barnett which allows the jury to delve into a factual inquiry of degrees of supervision.  We do not believe that Blankenship stands for that proposition.  The majority of plaintiff's argument

during trial, and on appeal, is centered on the fact that Baskin and

Shores were preoccupied and not paying attention to the pool.  Facts

were introduced that Shores was on the telephone with his back to the

pool, while Baskin was busy talking to girls on the bleachers.  These

facts support plaintiff's theory of "inattention or lack of vigilance."  Plaintiff argues that these facts bring this case within the ambit of

the holding in Blankenship.  We decline to find that Blankenship permits this type of factual inquiry.  As interpreted by the supreme court in Barnett, Blankenship stands for the very limited proposition that when lifeguards are not physically present on the pool deck, and, as a result

of their absence, they are unable to observe the pool, a complete

absence of supervision can be found.  A strong argument could be made that if lifeguards are present on the pool deck, but they are completely incapacitated (i.e., unconscious, extremely intoxicated), a court could find a complete absence of supervision.  The facts introduced by

plaintiff in this case, taken as true, establish only that the

supervision in this case may have been inadequate.  Barnett held that under section 3-108(b), the "adequacy" of the supervision is irrelevant. 

We interpret Barnett to hold that this supervision, adequate or not, entitles the park district to immunity.        

	A case that was decided after Barnett and Blankenship offers additional support for this finding.  In Dixon v. Chicago Board of Education, 304 Ill. App. 3d 744, 710 N.E.2d 112 (1999), this court held that because the school's swimming coach was on the pool deck when the

decedent drowned, "[w]e believe that [this] was 'supervision' as

contemplated by the immunity statute." Dixon, 304 Ill. App. 3d at 749. Citing to Barnett, this court noted that the plain language of section 3-108(b) does not require a particular level or degree of supervision. 

"Had Blake and the volunteer lifeguard left the pool area while Tiffany

was in the water, the facts would fall within Blankenship."  Dixon, 304 Ill. App. 3d at 750. 

	In this case it was improper for the trial judge to charge the jury

with determining the level or degree of supervision provided by the

defendant.  The defendant is immune from liability because it was

uncontroverted that two lifeguards were present on the pool deck. 

Therefore, the trial court should have directed a verdict in the

defendant's favor.

	In further support of our holding, it should be noted that section

3-108(b) was amended, effective December 2, 1998, to include a willful

and wanton exception.  The statute now reads:

		"(b) Except as otherwise provided in this Act, 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 unless the employee or the local

public entity has a duty to provide supervision imposed by

common law, statute, ordinance, code or regulation and the local public entity or public employee is guilty of willful

and wanton conduct in its failure to provide supervision proximately causing such injury." (Emphasis added) Pub. Act 90-805, § 5, eff. December 2, 1998 (amending 745 ILCS 10/3-

108(b) (West 1994)). 

As defendant asserts, it appears that the amendment is not to be applied

retroactively.  See Henrich v. Libertyville High School, 186 Ill. 2d 381, 712 N.E.2d 298 (1998).  Even if we were to apply the exception

retroactively, it would not effect the result in this case.  The record

indicates that, in answering the two special interrogatories, the jury

specifically found that the conduct of the defendant was not willful and

wanton.  The interrogatories read as follows:

	"At the time of the occurrence, was the conduct of the

lifeguards willful and wanton?	                No        At the time of the occurrence, was the conduct of the

lifeguards negligent?                                Yes"

	The amendment does further evince the intent of the legislature on

the issue at hand in this case.  In the amendment, the legislature

apparently addressed post-Barnett concerns.  The court in Barnett found that pre-amended section 3-108(b) granted absolute immunity with no

exception for willful and wanton conduct or negligent conduct.  The

legislature amended section 3-108(b) to specifically include an

exception for willful and wanton conduct but did not include an

exception for negligent conduct.  We can only interpret this amendment

as clarifying the legislative intent to shield public entities under

section 3-108(b) from liability resulting from negligence.  As the court

noted in Henrich: 

	"It is the province of the legislature to enact laws; it is

the province of the courts to construe them. Courts have no

legislative powers; courts may not enact or amend statutes. 

A court cannot restrict or enlarge the meaning of an unambiguous statute. The responsibility for the justice or

wisdom of legislation rests upon the legislature.

{Citations.]  A court must interpret and apply statutes in

the manner in which they are written.  A court must not

rewrite statutes to make them consistent with the court's

idea of orderliness and public policy."  Henrich, 186 Ill. 2d at 394-95.  

Similarly, we will not depart from the statute's plain language by

reading into it exceptions, limitations or conditions that conflict with

the express legislative intent.  In re Consolidated Objections to Tax Levies of School District No. 205, 193 Ill. 2d 490, 496, 739 N.E.2d 508 (2000). 

B. DAMAGES

	Defendant makes an additional argument, in the alternative,

challenging the amount of the judgment.  Defendant alleges that the

trial court's exclusion of relevant evidence resulted in an award based

on sympathy and emotion.  Because of our finding that the defendant is

entitled to immunity from liability, we need not address this claim.

	For the foregoing reasons, we set aside the jury verdict, vacate the judgment entered upon the verdict and enter judgment notwithstanding

the verdict in favor of the defendant.  	 	 

	Accordingly, we reverse the decision of the trial court.

	Reversed.

	GREIMAN and THEIS, JJ., concur.