In most cases involving personal injury, the court seeks to determine negligence. However, when the defendant is a governmental entity, sometimes the law requires that the plaintiff establish the higher standard of willful and wanton conduct.
Willful and wanton conduct is defined as a course of action that shows an actual or deliberate intention to cause harm or, if not intentional, shows an utter indifference to or a conscious disregard for the safety of others. A good example of willful and wanton misconduct is found in Andrzej Kolodziej, as Independent Administrator of the Estate of Michal Duda v. Justice Park District, 2020 IL App (1st) 191032-U.
During the summer of 2014, 6-year-old Michal Duda attended a camp held by the Justice (Ill.) Park District. As part of the camp, the park district took Duda and other campers to a group swim at a public pool operated by the Village of Bridgeview, Ill. Bridgeview had an L-shaped main pool, a wading pool and three certified lifeguards on duty. Rules posted at the wading pool stated that the maximum age allowed in that pool was 5 years old. The main pool was divided by corded buoys that separated the main pool's shallow area, known as the lap pool, from the deep area, known as the diving well.
When taking the campers to the pool, Justice divided its counselors into three supervisory groups based on the campers' ages — 5 to 7, 8 to 9 and 10 to 12. Prior to the camp, Justice held an orientation for its counselors to prepare them for their summer jobs and train them in CPR, first aid and the use of AEDs. In addition, Justice conducted swim tests at the Bridgeview pool for all its campers and brought multiple sets of flotation devices to the pool for its campers to use. Justice required its non-swimmer campers to wear flotation devices — water wings — once they were inside the fenced area of the pool and to use only the shallow area of the pool.
On June 17, Duda and the other campers made their second trip to the Bridgeview pool, and Justice summer camp director Kelly Williams ordered swim tests for all campers. The 5-to-7-year-old group consisted of 27 campers, four of whom were non-swimmers. Each of the group's three counselors had been advised that Duda was one of the four members of their group who could not swim. Williams instructed her counselors to stay close to the non-swimmers but left it up to them to decide who would be in the pool and who would observe from the side of the pool.
Williams put water wings on Duda after they arrived at the pool. However, Williams later saw Duda without the water wings and spoke to both him and his counselors about it. She gave Duda a timeout, told him that he needed to keep his water wings on, and put the water wings back on him before allowing him back in the pool.
At approximately 1:30 p.m., it was time for the Justice campers to leave the pool, with the youngest group exiting first. Williams observed Duda, who was not wearing his water wings, holding onto the edge of the pool in the shallow end. She told him to exit the pool and observed him start to get out of the pool and head toward the fenced area. She never saw Duda go back in the pool and did not know that he reentered the water after she had instructed him to leave the pool and go to the locker room. There was no evidence that any Justice counselor was aware that, after being told to leave the pool, Duda had apparently reentered the water.
As the other campers were leaving the pool, Duda was discovered floating in the shallow end of the pool without any flotation device on his body. His face was under water and he was unresponsive. Once Duda was removed from the pool, CPR efforts began and he was taken by ambulance to a hospital. Physicians were able to regain a stabilized heart rate after 78 minutes of cardiac arrest. However, during the cardiac arrest, Duda's brain suffered irreversible damage from a lack of adequate oxygen, and he was eventually removed from life support. As a result, the estate of Duda filed a wrongful death suit alleging the defendants were liable for willful and wanton misconduct.
Damages, district defense
During the trial, the jury found that even though Justice's summer camp had a total of 10 counselors at the pool, the conduct of the three counselors assigned to the 5-to-7-year-old group was willful and wanton.
Jurors found the counselors spent substantial time away from the shallow area of the pool and allowed Duda to be in the pool without supervision and adequate flotation device, even though they knew he could not swim or stand in the shallow area. Based on this evidence, the court awarded Duda's estate $21.5 million. Since the Duda estate had agreed to accept a $3 million settlement from Bridgeview, the operators of the swimming pool, the remaining $18.5 million judgment was against the Justice Park District.
On appeal, Justice argued that its conduct was not willful and wanton since it took numerous precautions to avoid the risk of injury. Specifically, Justice argued that it brought its campers to a pool with three certified lifeguards on duty, administered a swim test to every camper, brought flotation devices to the pool, and required non-swimmers to use flotation devices while in the pool and to remain in the shallow end of the pool.
Justice also prepared its counselors prior to the start of camp with an employee manual and orientation, as well as training in CPR, first aid and the use of an AED. Staff members put flotation devices on Duda, reprimanded him and gave him timeouts when they noticed he was not wearing his flotation devices.
Justice argued that its numerous precautions demonstrated a conscious regard for its campers' safety. According to Justice, any attention lapses by its employees in supervising Duda, failing to ensure he kept his water wings on at all times, and failing to do a headcount before leaving the pool deck, while arguably negligent, do not rise to the level of willful and wanton conduct as a matter of law.
In upholding the trial court's verdict, the appeals court found that swimming pools are inherently dangerous for young children due to their risk of drowning, and Justice assumed the duty of accompanying and supervising its campers at Bridgeview's pool.
Although Justice was aware of the extreme risk of drowning for its youngest campers, who could not swim or stand anywhere in the pool's shallow area with their mouths or noses above the water level, Justice still allowed Duda and other non-swimmers into the pool without requiring them to wear an authentic lifejacket and be accompanied in the water at all times by an adult.
Justice's employees also knew on the date in question that Duda had repeatedly disobeyed their instructions to wear his water wings when he went in the pool and had been able, more than once, to remove those floatation devices undetected by Justice's employees and enter the water. Although Justice provided flotation devices for its non-swimming campers, testimony showed that counselors still needed to be within an arm's length of the camp's non-swimmers because those flotation devices did not provide sufficient or reliable protection against drowning.
Furthermore, Justice did not use a method or device, such as wristbands, to visually distinguish its non-swimming campers from those who could swim, and Justice did not otherwise inform Bridgeview's lifeguards as to which campers were non-swimmers. Finally, after Justice told its 5-to-7-year-old group to exit the pool in preparation to leave, Justice did not perform a headcount to ensure that all of the group's 27 members were present before the group's counselors escorted them from the pool deck and into the locker rooms.
Lessons to learn
Perhaps the most important lesson to take from this case is how the courts distinguish between negligence and willful and wanton conduct.
As mentioned, willful and wanton conduct is defined as deliberate intention to cause harm or utter indifference to safety. Negligence is simply a failure to exercise reasonable care. The willful and wanton standard is a higher standard to establish. However, this case illustrates that even at that higher standard, a governmental entity can still be found liable.
Another lesson from this case stems from its $21.5 million jury award. Justice argued that the award far exceeded the range of fair and reasonable compensation, and may have resulted from the jury's passion and prejudice against the defendants. While a court can reduce or even throw out a jury verdict if it believes that the verdict is excessive, it will only do so if it 1) exceeds the range of fair and reasonable compensation, 2) is the result of passion or prejudice or 3) is so large that it shocks the judicial conscience. However, even if it believed that the verdict was high, the court held that the amount of a verdict is generally at the discretion of the jury, and a reviewing court should not lightly substitute its opinion for the judgment rendered in the trial court.
Therefore, if it believes that the award falls within a reasonable range of conclusions that can reasonably be supported by the facts, the court will not reduce the verdict.
Attorney John T. Wolohan is a professor of sports law in the David B. Falk College for Sport and Human Dynamics at Syracuse University. Fei Gao is an assistant professor in the Recreation and Sport Management program at Coastal Carolina University.
This article originally appeared in the January | February 2021 issue of Athletic Business with the title "Conduct during pool outing costs park district $18.5M." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.