2023 IL App (4th) 220025-U 

NO. 4-22-0025 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MARY YARBOROUGH, Individually and as Special 

Administrator of the Estate of Eric M. Jones, 

Plaintiff-Appellee, 

 v. 

THE CITY OF SPRINGFIELD, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Sangamon County 

No. 08L176 

Honorable 

Ryan M. Cadagin, 

Judge Presiding.

 

 JUSTICE TURNER delivered the judgment of the court. 

 Justices Lannerd and Knecht concurred in the judgment. 

ORDER

¶ 1 Held: The trial court did not err in denying defendant’s motion for judgment 

notwithstanding the verdict.

¶ 2 In July 2008, plaintiff, Mary Yarborough, individually and as special administrator 

of the estate of her 16-year-old son, Eric M. Jones, filed the wrongful death suit at issue in this 

case against City Water Light and Power (CWLP) and the City of Springfield (City) after Eric 

drowned at a public beach at Lake Springfield (the beach). In January 2015, plaintiff filed a 

second-amended complaint which named the City as the sole defendant. In February 2015, a jury 

returned a verdict in plaintiff’s favor. The City appealed, and this court reversed the trial court’s 

judgment and remanded the case for further proceedings, holding the trial court abused its 

discretion in admitting as evidence an internal policy regarding lifeguard placement at the beach. 

Yarborough v. City of Springfield, 2016 IL App (4th) 150336-U, ¶ 75. On remand, after a second 

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 

FILED

February 22, 2023

Carla Bender

4th District Appellate

Court, IL
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trial, a jury again returned a verdict in plaintiff’s favor. On January 5, 2022, the trial court denied 

the City’s motion for judgment notwithstanding the verdict. The City appeals, arguing its motion 

for judgment notwithstanding the verdict should have been granted because it is entitled to 

immunity pursuant to the Local Governmental and Governmental Employees Tort Immunity Act 

(Act) (745 ILCS 10/1-101 et seq. (West 2006)). We affirm. 

¶ 3 I. BACKGROUND 

¶ 4 At the second jury trial in May 2021, the parties stipulated the employees at CWLP

and the beach were agents of the City. The parties also stipulated Eric Jones died from asphyxia 

by drowning. 

¶ 5 Douglas England testified he was the utility property manager for CWLP and 

involved in the operation of the beach when Eric drowned in July 2007 but was not present and 

had no personal knowledge of what occurred. England was not a lifeguard and had no expertise 

with regard to a lifeguard’s job. Prior to overseeing the beach, he had never managed an 

open-water facility or a pool. England testified he did not hire anyone at the beach but made sure 

the beach employees had what they needed to perform their duties. When the beach was open, he 

would check in once or twice per day. His position outranked the beach managers and lifeguards. 

He had the authority to direct the beach employees. However, he was not involved in the training 

or certification of the lifeguards. He did not know if the lifeguards were given training manuals. 

¶ 6 England testified the beach managers made sure the beach operated appropriately

and were to report any serious problems to England. Like England, the beach managers also did 

not supervise the lifeguards with regard to rescues, supervising the patrons, or on-site lifeguard 

training. England did not know if the beach managers in 2007 were certified lifeguards.

¶ 7 England believed a procedure was in place for locating missing persons and bathers 
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at the time Eric drowned, which included clearing the water, checking the facilities for the person, 

and starting a line search in the water if the person was not found. He had heard an emergency 

action plan (EAP) being discussed but did not recall ever seeing one at the beach. England claimed 

a document called “Emergency Procedures” was either given to the beach managers and lifeguards 

or posted in the office or lifeguard room. He had not found any other lists of emergency 

procedures. He expected the lifeguards and beach managers would have known of these 

emergency procedures. The “Emergency Procedures” document indicated lifeguards should blow 

their whistle one time to warn a patron, two times to get the attention of the other guards, and three 

times for a true emergency such as a lost child or drowning patron. England testified a line search, 

where the guards linked arms and walked through the water, would be the best type of search to 

use at the beach because of the opaque water. England believed beach patrons should have been 

able to rely on the lifeguards performing their jobs. However, he also noted signs were posted in 

the locker rooms and the water instructing novice swimmers to stay in shallow water. In addition, 

a buoy line separated the shallow water from the deeper water.

¶ 8 Three to four weeks before Eric’s death, after a patron complained to the mayor’s 

office about what the patron believed to be an inappropriate number of lifeguards at the beach, 

England prepared a handwritten memo, which he said reflected the policy which had been in place 

during his tenure as the utility property manager. The memo indicated a lifeguard needed to be in 

the area of the diving board when used, the slide when used, and the middle area of the water if 

someone was in the water there. He said the lifeguards and beach managers should have been 

familiar with the information in the memo. Plaintiff’s counsel and England then had the following 

exchange:

 “Q. Now I’m going out on a limb here in saying that you underlined the 
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word ‘must’ and the manner in which you delivered this memo, half dozen or more 

[copies] to the beach personally, you were a little upset about the complaint?

 A. I don’t know if I was upset. I was just wanting to reiterate where we 

want guards and why. 

Q. Okay. And do you believe that you would have delivered this memo in 

person to the beach house ***? 

A. Yes.” 

It is not clear who he gave the copies of the memo to at the beach house. 

¶ 9 Brittany Young-Hunter testified she was a certified lifeguard for the City in 2007

but had no experience in an open-water facility prior to working at the beach. She did not recall 

being given any manuals explaining procedures and policies at the beach. She did take a fitness 

and agility test at the beach. To pass the test, a lifeguard had to jump from the balcony of the 

beach house onto a pile of sand, run to the water, swim to the seawall, and then get back to the 

sand pile in three minutes or less. Young-Hunter testified a missing swimmer needed to be found 

within three minutes to avoid brain damage.

¶ 10 Young-Hunter did not remember doing any in-service training at the beach before 

she was allowed to work while the beach was open to the public. She testified she was a head 

lifeguard in 2007, had more responsibilities than a normal lifeguard, considered England to be her 

supervisor, and was never told she was to train the other lifeguards. In addition, she testified she 

was never given an EAP, never practiced a missing person EAP, and never did any “dummy drop” 

drills while working at the beach. A “dummy drop” drill requires lifeguards to locate a dummy 

the size of a child in the water, bring it to the surface, and then perform cardiopulmonary 

resuscitation (CPR). EAPs were discussed at both her StarGuard and Red Cross certification 
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training. According to Young-Hunter, EAPs are necessary because they help lifeguards respond 

faster in emergency situations. Based on her training with StarGuard and Red Cross, the EAPs 

should be written down so everyone knows what to do. Young-Hunter also testified EAPs need 

to be site specific.

¶ 11 When Eric drowned, two lifeguard chairs were in use. They were the “south mid 

chair,” which was between the shoreline and the seawall on the south side of the swimming area, 

and the “slide chair,” which was by the waterslide. Chase Gobble replaced Young-Hunter in the 

“slide chair” before the incident. Denis Caveny was in the “south mid chair.” When Gobble 

announced for everyone to clear the water on his megaphone, Young-Hunter was not in the water. 

She ran toward Gobble to assess the situation. Gobble looked panicked. Someone said a patron 

was underwater or missing. Young-Hunter went into the water and noticed Caveny was no longer

in the “south mid chair.” She asked Gobble what happened but was given no information other 

than that they had a missing swimmer. While moving toward the deep end of the swimming area, 

she heard a woman, who she believed was a family member or friend of the missing person, say

the missing person was by the seawall. Young-Hunter did not know whether the missing person 

could swim. She also did not know the swimmer’s last known location, which was important 

information based on her training. Neither Denis Caveny nor any other lifeguard told her anything 

about Eric except he was missing. When she and Gobble got out to the area identified by the 

woman, she started diving looking for the missing person. After searching, she started blowing 

her whistle. When the other lifeguards who were working but were not on active duty at that 

moment started to respond, she noticed some of the guards had to go back to get rescue buoys. 

After the guards got in the water, the search for the missing swimmer was chaotic and unorganized. 

She tried to organize a line search, but everyone was so frantic she did not think her suggestion 
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registered with the other lifeguards.

¶ 12 According to Young-Hunter, during a line search, the lifeguards line up, hold 

hands, and walk together while dredging their feet back and forth until they cannot touch the 

bottom of the lake. Then, while staying in line, the lifeguards would start diving and feeling for 

the missing bather with their hands and feet. Because everyone is in a line, the lifeguards can 

make sure they cover the entire area. She said this is the best manner of finding a person in opaque 

water when you don’t know where the person is. The line search starts in the area where the person 

was last seen. Eventually, a patron at the beach forced everyone to come together in the shallow 

end and start a line search. She testified 10 minutes passed between the time she heard Gobble 

clearing the water and when she blew her whistle. Once the line search started, they found Eric in 

less than a minute 10 to 15 feet from the “mid south chair,” where Caveny had been sitting when 

the missing person was reported to him. Caveny had provided Young-Hunter with no information 

he learned from Eric’s friend, who first reported Eric was underwater and could not swim. Cassie 

Gurnsey-Hopkins, who was also a head lifeguard, found Eric. Other lifeguards pulled Eric to the 

surface and carried him out of the water. She believed a nurse and possibly someone from the 

military took charge of Eric’s treatment on the beach.

¶ 13 Also, according to Young-Hunter, when a person is reported missing to a lifeguard, 

the lifeguard should immediately blow his or her whistle, the water should then be cleared, and an

EAP should be activated. She believed Eric would have been found in under three minutes if 

Caveny had immediately blown his whistle and a line search was formed when the other lifeguards 

responded. 

¶ 14 Young-Hunter testified the lifesaving process was not set in stone. If she was in 

the lifeguard chair and was told someone just went underwater at a precise location, she might dive 
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in and save the person without clearing the water first. However, she indicated she would blow 

her whistle first. On the day at issue, she did not make a conscious decision not to blow her whistle 

before she started looking for Eric. The situation was confused from the beginning because no 

one took charge. With regard to information she was given by the woman on the beach, 

Young-Hunter assumed the woman knew Eric’s last known location. However, she conceded the 

woman might have seen Caveny’s head bobbing out by the seawall.

¶ 15 Kelly Pinkley testified she was a certified lifeguard at the beach but had no prior 

experience in an open-water facility. Pinkley also testified England had managerial authority over 

her. She did not recall seeing any memo he drafted for the beach staff. She indicated scanning 

was important for a lifeguard to help keep track of people in the water. If anyone was using the 

diving platform, a lifeguard needed to watch the person dive, surface, get back to, and climb on

the platform. She testified lifeguards are required to follow EAPs to do their job properly. She 

believed an EAP was on the bulletin board at the beach house but did not remember what it said. 

According to Pinkley, if a lifeguard is told a person is missing, the lifeguard should first blow his 

or her whistle, then clear everyone out of the water, and then start looking for the missing person 

in his or her last known location. When other lifeguards arrived, they should do a line search for 

the person.

¶ 16 Pinkley was in the upstairs break room of the beach house when she heard a long 

whistle. She saw the water being cleared, jumped off the balcony, and started the EAP. She

quickly put her guard suit top on and saw Casey Gurnsey putting her guard suit back on. Pinkley 

grabbed rescue tubes and headed to the water. The lifeguards she saw were in the deep water and 

scattered. She went to where the other lifeguards were and started searching underwater. She only

knew they were looking for a boy. Pinkley thought she did five to seven surface dives searching 
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the bottom of the lake, with each search lasting between 30 seconds and a minute. The other 

lifeguards were doing the same. Eventually, the lifeguards formed a line search by the “south mid 

chair” and found Eric soon after starting just north of the chair.

¶ 17 Pinkley testified Caveny’s and Gobble’s placement at the beach was normal unless 

the beach was more crowded or if children at a summer camp were present. The lifeguard in the 

“south mid chair” was responsible for watching both the divers and people swimming in the deep 

water. Pinkley did not speak to Caveny about what happened. 

¶ 18 Cassie Kovalski was a certified lifeguard and also had her open-water certification. 

She did not recall any other tests or training provided to her at the beach other than the fitness and 

agility test and treading water while holding a brick over her head. She also did not remember 

seeing England’s memo prior to Eric drowning. If the diving board chair was not being used, the 

lifeguard in the “south mid chair” would watch the divers. According to Kovalski, a lifeguard 

should go into the water to assist someone he or she could see was struggling. However, when a 

lifeguard is informed someone is missing, the lifeguard should first blow his or her whistle, then 

clear the water, and then do a line search as soon as the other lifeguards arrived after responding 

to the whistle. She believed the lifeguards only blew their whistles if there was an emergency. 

She also indicated a staff member would look around the facilities in case the person was in the 

locker room or concession stand and not in the water. 

¶ 19 When Eric was reported missing in the water, she saw people leaving the water. 

She went into the water to help the other guards who said they were looking for a non-swimmer. 

She did not remember hearing a whistle and started blowing hers because only four or five 

lifeguards were in the water. The other lifeguards in the water continued searching. She did four 

to six dives trying to find Eric. She was not told the missing swimmer’s last known location and
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estimated 10 minutes passed between her entering the water and the line search. After the line 

search started, Eric was found within five minutes far from where they were performing rescue 

dives. During her time working at the beach, she received no training on how to do a line search. 

She did not believe she was ever told where Eric was initially reported missing.

¶ 20 Denis Caveny testified he had lifeguard, CPR, and first aid certifications. He 

interviewed with England and believed England’s authority exceeded everyone else’s authority at 

the beach. If England told him to do something, he did it. The beach was Caveny’s first 

open-water lifeguard job. He did not remember receiving any training at the beach or seeing or 

hearing about England’s memo. As a certified lifeguard, he knew murky water was a known 

hazard and posed more of a safety risk than clear water. Caveny also acknowledged he knew nonswimmers went into areas marked as deep water.

¶ 21 Caveny testified EAPs are necessary for a lifeguard to do his or her job effectively. 

While he believed a lifeguard has some discretion to not follow an EAP, the EAP is not to be 

disregarded. He did not remember much about the EAP in place at the beach for a distressed 

patron in the water. After being shown his earlier deposition testimony, Caveny agreed the EAP 

for a drowning victim first required blowing your whistle and then clearing the water. The 

lifeguard would then try to locate the drowning victim by himself in the victim’s last known 

location. If the lifeguard could not find the person, then a line search should be started right away. 

If no one knew where the missing person was, the lifeguards would clear the water and 

immediately start a line search. The EAP was initiated with three short whistle blasts to alert the 

other lifeguards of an emergency. After hearing the whistle, lifeguards would go to the water, 

clear the water if necessary, and then talk to other guards to determine how to help.

¶ 22 Just before Eric went missing, he and his group of friends were in front and a little 
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to the right of Caveny’s chair. Before he was told Eric was missing, Caveny’s attention was on a 

child using the diving board. Caveny said Eric’s companion did not yell that Eric was missing. 

Instead, they got his attention and said their friend was missing and could not swim. Plaintiff’s 

counsel pointed out Caveny told the police the person in Eric’s group yelled this information to 

him. The person indicated Eric was last seen near where the person was standing, which was a 

little northwest of Caveny’s chair. Caveny went to Eric’s last known location within seconds and 

searched for him by doing a grid search underwater for 10 to 15 seconds. He could not see anything 

in the water but searched twice by himself. After the second search, Caveny yelled at Gobble to 

clear the water. Cavaney said he did not blow his whistle because he thought it would be more 

effective for Gobble to do it and for Caveny to keep searching. When Caveny told Gobble to clear 

the water, this was the first time another lifeguard was notified of the emergency. Caveny testified 

Eric was found about six to eight feet from the lifeguard chair where Caveny had been sitting, 

which was very close to where Eric’s friends told Caveny they last saw him.

¶ 23 According to Caveny, after his second search underwater, Eric’s friends said they 

saw bubbles out by the seawall and gestured toward the seawall. Caveny had no additional 

information. He then swam out by the seawall and started searching for Eric. Gobble soon joined 

Caveny. Caveny did not tell Gobble of Eric’s last known location or that Eric could not swim. He 

did not remember who else came out that far to search or whether anyone in the water blew their 

whistle more than 10 times. Eventually, a line search was done, and Eric’s body was quickly

found. Caveny indicated a line search was the only effective way to find someone in water where 

you could not see. According to Caveny, when he was searching by the seawall, Eric’s friends did 

not say he was looking in the wrong spot.

¶ 24 Darcy Woodrum and her husband Travis Woodrum both testified they were at the 
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beach on the day in question but were outside the fenced area when they noticed a commotion. 

They ran back to the water when they realized something serious was happening. Darcy called 

911 because she believed someone was missing. She heard a boy arguing with a lifeguard, 

screaming someone had gone down in the water. The lifeguard told the boy to check the beach 

house for the missing person. Darcy told her husband to help the lifeguards because they were not 

doing much of a search. The boys who had been with Eric were saying Eric was last seen in the 

area where he was eventually found. Darcy said the lifeguards looked panicked, confused, and 

unorganized. She acknowledged neither she nor her husband had ever been a certified lifeguard 

or knew what rules and procedures lifeguards are expected to follow.

¶ 25 Travis Woodrum testified no one knew what was going on at the beach, and he had 

not heard a whistle. After about five minutes, he noticed lifeguards running back and forth from 

the water to the beach house to get floatation devices and other equipment. He then heard a 

lifeguard tell another lifeguard to blow his or her whistle. After the whistle was blown, more 

lifeguards came to the water. Like his wife, Travis testified a group of boys who had been with 

Eric were telling a lifeguard Eric was at the location where he was finally found. Because the 

lifeguards did not seem to be doing anything, Travis and another man went into the water. 

Eventually some civilians and lifeguards started doing a line search and found Eric. Travis testified 

he pulled Eric out of the water and carried him to shore.

¶ 26 Gerry Dworkin testified as an expert in lifeguarding and aquatic safety. After 

reviewing deposition transcripts of all the lifeguards present, the City’s discovery responses, 

photographs, and police reports, and considering materials he had on lifeguarding and aquatic 

safety available around 2007, he testified it was his opinion to a reasonable degree of certainty 

with regard to lifeguarding and aquatic safety that the City failed to establish its own operational 
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protocols and surveillance protocols and did nothing to train its lifeguards through pre-service and 

in-service training necessary to ensure the lifeguards could operate as a team both in preventing 

and managing accidents. He testified the evidence was clear the lifeguards did not respond 

appropriately to the incident. Dworkin testified the City through its agents at the beach showed a 

conscious disregard for the supervision and management of its lifeguards, which was a proximate 

cause of Eric’s drowning death because the lifeguards failed to (1) recognize Eric’s distress 

because of a lack of established surveillance protocols, (2) appropriately respond to a report of a 

missing bather, and (3) appropriately search for the missing bather.

¶ 27 Dworkin testified drowning was a known hazard and danger in the lifeguarding 

industry in 2007. According to Dworkin, certified lifeguards are not qualified to work at every 

aquatic facility. He noted organizations that provide certification advocate for certified lifeguards 

to receive site-specific pre-service training and regular in-service training. Dworkin also testified 

every aquatic facility should have a comprehensive risk management program, which includes 

conducting a comprehensive threat assessment to develop operational protocols and procedures to 

prevent, recognize, and manage incidents and a plan to train its employees for potential incidents. 

Dworkin testified the City, the managers, and the lifeguard supervisors did nothing to provide 

site-specific training for the lifeguards and did not know anything about the protocols the 

lifeguards were following. According to Dworkin, lifeguards need to be supervised, and it is

critical for the facility manager to develop standard operating procedures, including EAPs, to 

ensure a consistent response to emergencies. Dworkin indicated lifeguards cannot simply be hired 

at the beginning of the summer and told to do their jobs without any site-specific training. 

¶ 28 While the City had somewhat of a plan for locating a missing person, Dworkin said 

the City’s plan failed to distinguish between a missing person outside the water and a missing 
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bather. As a result, Dworkin thought the City’s plan was not good. He also indicated none of the 

lifeguards testified they had practiced an in-service missing bather EAP. While the lifeguards 

knew what should have been done, Dworkin testified they failed to follow the appropriate steps

during the emergency because no protocols were in place and they were not properly drilled to 

prepare for the situation.

¶ 29 Dworkin testified any missing bather report in an open-water facility is a true 

emergency. If a lifeguard gets such a report from a credible witness, it is critical to put the witness 

in the position where they last saw the victim and the search needs to be done in that location in 

an organized and coordinated manner. Dworkin also testified it has been well known for decades 

that non-swimmers will go into deep water. Dworkin believed Eric’s drowning was preventable. 

¶ 30 Michael Jones, Eric’s brother, testified he, Eric, and their cousins went to the beach 

to have a good time. Eric wanted to learn to swim. It was Michael and Eric’s first time at the 

beach. They went into water about chest deep. At some point, Michael slipped, and he grabbed 

Eric, who was by him. Their cousin then grabbed Michael and swam him to shallower water. 

When this happened, Michael lost contact with Eric. Michael looked for Eric but could not see 

him. He called to a lifeguard and told him his brother was under the water and could not swim. 

The lifeguard got in the water, and Michael told him where he had lost contact with Eric, which 

was close to where Michael was standing. The lifeguard started looking for Eric, but not in the 

area Michael told him to look. Michael was hollering at the lifeguard and pointing to where Eric 

had been. However, the lifeguard did not hear him, and Michael was told he had to get out of the 

water. A lifeguard then asked Michael to check the locker room to see if Eric was in there, which 

Michael did. When he came back from the locker room, the lifeguards were not in the area where 

he told them Eric was last seen. 
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¶ 31 After plaintiff rested, the City moved for a directed verdict based on our supreme 

court’s decision in Barr v. Cunningham, 2017 IL 120751, ¶ 18, 89 N.E.3d 315, arguing plaintiff 

did not present sufficient evidence to establish the City’s actions were willful and wanton. The 

trial court denied the City’s motion.

¶ 32 The City then presented its witnesses. Cassandra Gurnsey-Hopkins testified she 

was one of the head lifeguards during the summer of 2007. The City only hired certified lifeguards 

to work as lifeguards at the beach. In 2004, when she started working at the beach, in-service 

training was provided once a summer, sometimes more. She believed the EAP in 2007 for a

missing swimmer whose location was identified in the water by his companions required 

immediate action to try and find the missing swimmer by checking the indicated area first. She 

noted lifeguards are reliant on information provided by the missing person’s companions. 

¶ 33 Gurnsey-Hopkins was in the break room when she became aware of the situation. 

She believed Gobble was blowing his whistle. She jumped from the balcony, grabbed a lifeguard 

tube, and ran to the water as the patrons were leaving it. She was told what was happening by 

other lifeguards, and she spoke to some people who said they were Eric’s friends. She testified 

Eric’s friends said he went underwater and was last seen by the seawall. She then started searching 

by the seawall with the other lifeguards in a coordinated dive search. When they did not find 

anything, she and Young-Hunter decided to start a line search at the shoreline. She said the line 

search was organized by the lifeguards, not a patron. Eventually, they got to a place in the water 

where they could not touch so they started diving. Her foot went into Eric’s back. She came back 

up, told Gobble she found Eric, and Gobble grabbed Eric and took him to the shore.

¶ 34 On cross-examination, Gurnsey-Hopkins testified a missing person EAP was never 

practiced. She indicated she would have first blown her whistle to notify every other lifeguard of 
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an emergency if she was in Caveny’s situation. She stated the act of blowing the whistle started

the EAP. She was conscious of this and believed the other lifeguards were as well. Another guard 

would use a megaphone to clear the water of people and point to where the initial whistle was 

blown so the responding lifeguards would know where the emergency was. She testified the next 

step would be to start a bottom search where the victim was last known to be.

¶ 35 Gurnsey-Hopkins acknowledged non-swimmers were always trying to go into 

deeper water instead of staying in the shallow area. She also stated all the lifeguards should have 

had a clear understanding of the action plans. On cross-examination, she acknowledged she did 

not talk to anyone who was with the victim before she went into the water by the seawall and 

started searching. The only person she spoke to before starting to search the water was another 

lifeguard. She acknowledged she said the search was disorganized during a deposition in 2009. 

¶ 36 Tyler Lobemaster testified he started working at the beach in June 1999 and was a 

beach house manager in 2007. He had never been a lifeguard and was not at the beach on the day 

in question. He testified they had EAPs at the beach, which were kept either in the manager’s 

office or in the lifeguard station. The EAPs were discussed among the lifeguards and with 

management at the beginning of the season and also occasionally during the three-month season. 

He was not involved in any drills or lifeguard safety exercises. The head lifeguard would set up 

those practices, and he did not tell the lifeguards what drills to do. He said the training included 

mock emergency drills and also the fitness and agility test previously discussed. The City provided 

the lifeguards with whistles, floating devices, body boards, backboards, CPR masks, and other 

equipment. He knew of no situation where a lifeguard was indifferent to the safety of a patron or 

disregarded their obligations to the patrons.

¶ 37 Lobemaster said Douglas England was his supervisor. England would get 
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equipment for the beach when it was needed and have repairs done at the beach. In his opinion, 

every lifeguard was conscious the EAPs were essential to save the lives of distressed swimmers. 

He believed every lifeguard should have been conscious and knowledgeable of the emergency 

actions plans and knew the plans had to be followed to the letter because lives depended on it.

¶ 38 Kate Blankenship, formerly Kate Figueira, testified she was a beach manager in 

2007. She started working at the beach as a certified lifeguard and worked as a lifeguard for five 

or six summers. The last summer she worked at the beach in 2007, she was promoted to manager. 

She was not a certified lifeguard at the time of the incident in this case. The beach required all its 

lifeguards to be certified. She testified they did in-service training, which might include fishing 

something heavy off the bottom of the diving well or engaging in role-playing scenarios. She said 

they did this at least once or twice per year.

¶ 39 When asked what a lifeguard is supposed to do if a patron says his friend went 

underwater and provides the last known location for the missing person, Blankenship responded 

the lifeguard is supposed to use their whistle to notify the other lifeguards of the potential 

emergency. This keeps the lifeguard from trying to deal with the situation by himself or herself. 

When asked if a line sweep is feasible in deeper water, Blankenship said it can be done. When

lifeguards are performing the line sweep and running out of ground to walk on, they stay in a line 

and submerge themselves, feel around, come back up, and then move forward in a line as best as 

possible. She testified she believed it was acceptable for the lifeguard to immediately search the 

area where the person was last seen before blowing his whistle.

¶ 40 On the day in question, she heard a whistle being blown. She was on the second 

floor of the beach house, jumped over the rail onto the sand pile, and then went down to see what 

was happening. She believed she was told someone was missing. Eric had been with family 
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members, and they were not sure if he was in the water or elsewhere. She believed the people 

originally said Eric was out by the seawall. She checked around places where Eric might be. 

When he was not found, she went back to the water and joined in the line search. She said no 

patron had taken over the situation and was telling the lifeguards what to do. After the line search 

started, she believed Eric was found within three to four minutes. She testified Caveny never told 

her Eric was found where he was reported missing.

¶ 41 Carl Brunsman testified he worked as a lifeguard at the beach. In a situation where 

a swimmer was missing, the lifeguard was supposed to blow his whistle to alert other lifeguards 

of the situation. If a lifeguard is told a person went under in a specific location, the lifeguard 

should immediately start looking in that area instead of waiting for a line search. He did not 

remember if he heard a whistle on the day in question. When he got to the beach, it was cleared. 

He heard the lifeguards say they thought the victim might have been in a different spot. The 

lifeguards then regrouped and started the line search. After Eric was found, Brunsman swam him 

back to shore. A random person at the beach tried to come over and start doing CPR on Eric while 

he was still in the water. Gobble hollered at the person that you cannot do CPR while the person 

is still in the water. When asked whether he made any conscious decision to disregard rules or 

procedures, Brunsman said he did not believe so. He explained instinct and training kick in during 

a situation like that. Brunsman said that is why you train.

¶ 42 Brunsman testified the beach was the first open-water facility he worked at. 

Besides the fitness and agility test, Brunsman testified he did not receive any in-service training at 

the beach. He was not told the missing person was a non-swimmer. He was also not told the last 

known point the missing person was seen was directly in front of the “south mid chair.” 

¶ 43 Chase Gobble, a head lifeguard at the beach at the time of Eric’s death, testified he 
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was a certified lifeguard but did not have an open-water certification. According to Gobble, some 

in-service training was done at the beach, but only when the managers said it needed to be done. 

In the training sessions they did have, they never practiced line searches. Gobble did not receive 

any kind of manual from the beach and had no memory of seeing one. He agreed the water at the 

lake was much more dangerous for swimmers than water at a pool because of the water’s 

opaqueness. Gobble indicated England was in a position of authority over the beach managers 

and lifeguards. If England asked Gobble to do something, Gobble would have done it. Gobble 

never received the memo England said he took to the beach weeks before Eric drowned.

¶ 44 According to Gobble, when Eric went underwater, Gobble was in a lifeguard chair 

in the shallow part of the lake and Caveny was in a lifeguard chair in deeper water. Gobble 

indicated this was a common set-up for the guards if the beach was not busy. He first became 

aware something was wrong when Caveny told him to clear the water. Gobble used his megaphone 

to do so. He testified someone blew his whistle, but he was unsure who did so. Gobble went into 

the water to help Caveny. Gobble said the kids who were talking to Caveny said Eric was out by 

the wall. Gobble and Caveny then went out by the seawall and looked for Eric. They were out 

searching by the wall for a few minutes. When they did not find him, they started a line sweep 

and found him within a minute or two.

¶ 45 According to Gobble, when a lifeguard is told a person is missing, the lifeguard is 

supposed to blow his whistle three times. This is what Caveny should have done. Because the 

lifeguard who received the report would have the most information regarding the last location of 

the missing person, another lifeguard would clear the water of patrons. Gobble did not remember 

if he stayed in his chair until everyone had left the water. Gobble said the next step in the EAP 

was to start a line search. According to Gobble, Caveny never told him the people with Eric said 
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he could not swim and was last seen within feet of the lifeguard chair Caveny had been using. Had 

Caveny told him this, Gobble would not have gone to the seawall to look for Eric. Instead, Gobble 

would have started a line search right away. 

¶ 46 David Stewart Smith testified as an expert witness in the field of aquatic safety for 

the City. He indicated he reviewed the deposition or trial testimony of two of Eric’s cousins, Eric’s 

brother, 10 lifeguards who were present and working on the day of the incident, Eric’s mother, 

Lobemaster, England, and a few other people. He also reviewed police reports and lifeguarding 

manuals from the Red Cross, the YMCA, and the United States Lifesaving Association. Smith 

testified neither the individuals managing the beach nor the lifeguards showed an utter disregard 

or conscious indifference for the safety of its patrons. Smith believed “utter indifference” meant 

no one cared about saving Eric, which was not true. He believed plaintiff needed to introduce 

some evidence the lifeguards did not care what happened to Eric to prevail. 

¶ 47 Smith noted the City required certified lifeguards, provided proper equipment, and 

followed Illinois law with regard to lifeguard staffing requirements. The City also posted warnings 

for novice swimmers. As for in-service training, Smith noted five lifeguards testified they 

remembered receiving some training at the beach. Smith testified Caveny’s initial search at the 

location where a witness said he last saw Eric did not represent an utter disregard, utter 

indifference, or complete disregard of Eric’s situation. Smith opined Eric’s conduct alone was the 

proximate cause of his death.

¶ 48 Smith acknowledged he had previously written that rescuers must be so practiced 

in certain aspects of protecting themselves, their clients, or their prospective victims to allow them 

to have an appropriate instinctive response. Smith agreed this was best accomplished by the 

rescuers participating in specific drills in the water on an individual and group basis.
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¶ 49 We note all of the lifeguards who were asked indicated they took their job seriously, 

would have done everything in his or her power to rescue a drowning person, and did not 

consciously disregard his or her duties for the safety of the beach patrons.

¶ 50 At the close of all the evidence, the City made an oral motion for a directed verdict, 

referencing its earlier motion for a directed verdict and adding an argument the evidence 

established the City’s conduct fell within the City’s discretionary immunity per statute. The trial 

court denied the City’s motion.

¶ 51 The jury returned a verdict in favor of plaintiff and found the total amount of 

damages to be $1,500,000 ($750,000 for past and future grief and sorrow and $750,000 for post 

and future loss of society). The jury also found the percentage of negligence attributable solely to 

Eric Jones was 50%. As a result, plaintiff was awarded $750,000 in recoverable damages.

¶ 52 On June 10, 2021, the City filed a posttrial motion for judgment notwithstanding 

the verdict. On January 5, 2022, the trial court denied the City’s motion, stating:

“The present case involves a known dangerous activity and there was sufficient 

evidence to support the jury’s verdict finding willful and wanton conduct by the 

[the City] and/or [its] agents. The Court further finds 745 ILCS 10/2-201 

Discretionary Immunity does not apply as section 745 ILCS 10/3-108 is 

controlling.” 

This appeal followed.

¶ 53 II. ANALYSIS 

¶ 54 On appeal, the City argues the trial court erred by not granting its motion for 

judgment notwithstanding the verdict because the evidence presented did not establish the actions 

of the City and its agents rose to the level of willful and wanton conduct. Therefore, the City
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argues it was immune from liability pursuant to section 3-108 of the Act (745 ILCS 10/3-108 

(West 2006)). The City also claims it is entitled to discretionary immunity pursuant to sections 

2-201 and 2-109 of the Act (745 ILCS 10/2-201, 2-109 (West 2006)) for decisions its employees

made while operating the beach. 

¶ 55 In Harris v. Thompson, 2012 IL 112525, ¶ 15, 976 N.E.2d 999, our supreme court 

provided the following guidance with regard to reviewing the denial of a motion for judgment 

notwithstanding the verdict, which is often referred to as a judgment n.o.v.: 

“ ‘[V]erdicts ought to be directed and judgments n.o.v. 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 the 

evidence could ever stand.’ Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 

510, 229 N.E.2d 504 (1967). Where the uncontradicted evidence, viewed in the 

light most favorable to the plaintiff, establishes a complete defense, a court is 

justified in granting the defendant's motion for a judgment n.o.v. [Citations.] An 

adverse ruling on a motion for a directed verdict or a judgment n.o.v. is reviewed

de novo. [Citation.] In other words, the reviewing court applies the same Pedrick

standard as did the circuit court.” 

The question here is whether the evidence in this case establishes the City is entitled to immunity 

under the Act.

¶ 56 A. Willful and Wanton Conduct

¶ 57 The City first argues the evidence in this case clearly establishes neither it nor its 

employees engaged in willful and wanton conduct. As a result, the City argues it is entitled to 

immunity pursuant to section 3-108(a) of the Act (745 ILCS 10/3-108(a) (West 2006)), which 
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states, “[e]xcept as otherwise provided in this Act, neither a local public entity nor a public 

employee who undertakes to supervise an activity on or the use of any public property is liable for 

an injury unless the local public entity or public employee is guilty of willful and wanton conduct 

in its supervision proximately causing such injury.”

¶ 58 Section 1-210 of the Act (745 ILCS 10/1-210 (West 2006)) defines willful 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 or their property.” In Harris, 2012 IL 112525, ¶ 41, 976 N.E.2d 999, our supreme court 

provided the following guidance: 

“The term ‘willful and wanton’ includes a range of mental states, from actual or 

deliberate intent to cause harm, to conscious disregard for the safety of others or 

their property, to utter indifference for the safety or property of others. [Murray, 

224 Ill. 2d 213, 235, 864 N.E.2d at 189.] Further, this definition of willful and 

wanton conduct is entirely consistent with this court’s long-standing case law. 

[Citations.] Whether conduct is willful and wanton depends on the circumstances 

of each case.” 

Ordinarily, the determination whether conduct is willful and wanton is a question of fact for the 

jury. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 245, 864 N.E.2d 176, 194 (2007). 

However, if the evidence is so overwhelmingly in favor of one party that a different result cannot 

stand, a court may decide as a matter of law whether the conduct is willful and wanton. Bielema 

ex rel. Bielema v. River Bend Community School District No. 2, 2013 IL App (3d) 120808, ¶ 12, 

990 N.E.2d 1287. 

¶ 59 According to the City’s brief, the supreme court in Barr clearly held that when a 
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unit of local government takes steps to prevent injuries, the fact the entity did not take additional 

steps that would have prevented an injury does not establish the entity exhibited a conscious 

disregard for the safety of others. The City then argues the supreme court’s reasoning in Barr is 

representative of the uniform law followed in Illinois. As examples of this uniformity, the City

cites and provides a brief summary of the following cases: Bielema, 2013 IL App (3d) 120808; 

Geimer v. Chicago Park District, 272 Ill. App. 3d 629, 650 N.E.2d 585 (1995); Tagliere v. Western 

Springs Park District, 408 Ill. App. 3d 235, 944 N.E.2d 884 (2011); Stiff by Stiff v. Eastern Illinois 

Area of Special Education, 279 Ill. App. 3d 1076, 666 N.E.2d 343 (1996); and Biancorosso v. Troy 

Community Consolidated School District No. 30C, 2019 IL App (3d) 180613, 151 N.E.3d 662.

¶ 60 The City seems to suggest these cases stand for the proposition an entity covered 

by the Act that takes some steps to protect an individual or individuals cannot be found to have 

engaged in willful and wanton conduct. We disagree. See In re Estate of Stewart, 2016 IL App 

(2d) 151117, ¶ 105, 60 N.E.3d 896 (“We disagree with the District’s implication that taking any 

action in response to a known danger is sufficient to insulate a defendant from allegations of willful 

and wanton conduct.”). While the fact more safety precautions could have been taken by a 

defendant does not establish the defendant’s conduct was willful and wanton, this does not mean 

the conduct of a defendant who took some safety steps cannot be willful and wanton. “Whether 

conduct is willful and wanton depends on the circumstances of each case.” Harris, 2012 IL 

112525, ¶ 41, 976 N.E.2d at 1011.

¶ 61 The jury in this case had sufficient evidence to find the City and its employees 

showed a conscious disregard for the safety of its patrons at the beach, including Eric, by failing 

(1) to have a clearly established EAP dictating how the lifeguards should handle a situation where 

a swimmer was missing in the water and (2) to require the lifeguards to practice responding to a 
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situation where a person is reported missing in the opaque water at the beach.

¶ 62 The evidence showed this was Denis Caveny’s first lifeguard job at an open-water 

facility. He received no in-service training at the beach. The evidence showed he was the first 

lifeguard notified Eric was missing. Instead of blowing his whistle to alert the other lifeguards of 

the potential emergency as he should have done, he entered the water and started searching for 

Eric. Only after doing two searches by himself did he alert another lifeguard, Chase Gobble, to 

clear the water. While Gobble used his megaphone to clear the water, some evidence showed he 

also failed to blow his whistle to alert the other lifeguards. Caveny then failed to tell Gobble or 

any other lifeguard the missing swimmer could not swim and was last seen near the lifeguard tower 

where Caveny had been sitting. According to Gobble, if he knew this information, he would have 

started a line search right away. Instead, Gobble followed Caveny out by the seawall and searched 

for Eric there. When the whistle was finally blown, the other lifeguards responded to the area 

where Caveny and Gobble were searching. The lifeguards wasted valuable time looking for Eric 

in the wrong location. Witnesses testified the search by the seawall was disorganized, with no one 

in charge.

¶ 63 Plaintiff’s expert, Gerry Dworkin, testified the City and its agents did nothing to 

train its lifeguards through pre-service or in-service training, which was necessary to ensure the 

lifeguards could operate as a team both in preventing and managing accidents. Dworkin testified 

the lifeguards failed to respond appropriately when this emergency occurred. The evidence was 

clear that drowning is a known danger at an aquatic facility. In this case, the evidence showed the 

lake water was even more dangerous, especially when a bather is missing, because the lifeguards 

could not see in it. Based on the totality of the circumstances in this case, the fact the City and its 

agents failed to have a clear EAP in place for what the lifeguards should do if a bather was missing 
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in the water combined with the fact the City and its agents did not require the lifeguards to practice 

and drill what they should do in this type of situation in the opaque beach water was strong 

evidence of the City’s conscious disregard of the safety of its patrons, including Eric.

¶ 64 Dworkin testified the lifeguards knew what should have been done but failed to 

take the proper actions when the emergency actually occurred because the City and its agents had 

failed to train them for the situation. Even the City’s expert agreed rescuers should practice 

responding to emergencies so they would have an appropriate instinctive response to an emergency 

situation. Plaintiff also introduced evidence neither England nor the beach managers told the 

lifeguards they were in charge of training themselves.

¶ 65 Based on the record in this case, the trier of fact had sufficient evidence to find the 

failure of the City and its agents to have a clear EAP for this situation and to practice what needed 

to be done if a swimmer went missing in the beach’s opaque water, a known dangerous situation, 

constituted willful and wanton conduct that led to Eric’s death. Because the record contained 

sufficient evidence for a trier of fact to determine the City and its agents engaged in willful and 

wanton conduct, the City was not entitled to immunity pursuant to section 3-108 of the Act (745 

ILCS 10/3-108 (West 2006)), and the trial court did not err in denying the City’s motion for 

judgment notwithstanding the verdict.

¶ 66 B. Statutory Discretionary Immunity

¶ 67 The City also claims the trial court erred in not granting its motion for judgment 

notwithstanding the verdict because it is entitled to statutory discretionary immunity as a matter 

of law pursuant to sections 2-201 and 2-109 of the Act (745 ILCS 10/2-201, 2-109 (West 2006)). 

Section 2-109 states “[a] local public entity is not liable for an injury resulting from an act or 

omission of its employee where the employee is not liable.” 745 ILCS 10/2-109 (West 2006). 
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Section 2-201 states, “[e]xcept as otherwise provided by Statute, a public employee serving in a 

position involving the determination of policy or the exercise of discretion is not liable for an 

injury resulting from his act or omission in determining policy when acting in the exercise of such 

discretion even though abused.” 745 ILCS 10/2-201 (West 2006).

¶ 68 In the trial court, plaintiff argued section 2-201 does not apply because section 3-

108 covers the specific situation in this case. The trial court agreed. Although the trial court did 

not specify the authority on which it relied, plaintiff’s response to the City’s motion for judgment 

notwithstanding the verdict cited Murray v. Chicago Youth Center, 224 Ill. 2d 213, 864 N.E.2d 

176 (2007). In Murray, our supreme court stated:

“Even when an immunity provision does not contain conditional language 

as found in sections 2-201 and 3-108(a), this court has not hesitated to consider 

whether the immunity afforded by one provision might be negated or otherwise 

limited by some other applicable provision. [Citations.] It is a well-settled rule of 

statutory construction that [w]here there are two statutory provisions, one of which 

is general and designed to apply to cases generally, and the other is particular and 

relates to only one subject, the particular provision must prevail.” (Internal 

quotation marks omitted.) Murray, 224 Ill. 2d at 233, 864 N.E.2d at 188.

¶ 69 In its appellant’s brief, the City failed to address the trial court’s conclusion section 

2-201 did not apply in this case because section 3-108 is controlling. In fact, appellant’s brief did 

not even mention section 3-108 or Murray when discussing why the trial court erred in not 

applying section 2-201. As a result, pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. May 

25, 2018), we find the City forfeited any argument the trial court erred in holding section 3-108 of 

the Act is controlling in this case. “A reviewing court is entitled to have the issues clearly defined 
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with pertinent authority cited and is not simply a depository into which the appealing party may 

dump the burden of argument and research.” People v. Hood, 210 Ill. App. 3d 743, 746, 569 

N.E.2d 228, 230 (2001). We will address this issue no further. 

¶ 70 III. CONCLUSION

¶ 71 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 72 Affirmed.